Germany: Failure to invite severely disabled applicant can result in compensation risk
In 2015, the plaintiff applied for a position as a bailiff. In his application, the applicant clearly pointed out that he had a recognised degree of disability that made him a severely disabled person under German law.
Even though the plaintiff was not obviously unsuitable for the job, he was not invited for an interview. The applicant suspected that this happened because of his disability. The applicant thus claimed compensation of approximately 7,300 Euros. The defendant, on the other hand, argued that the plaintiff’s application had not been received due to a rapidly overflowing Outlook mailbox, and due to inaccurate agreements among the employees involved. On this basis, the defendant argued that a discrimination due to the severe disability of the applicant did not take place. The German Federal Labour Court ruled in favor of the disabled applicant and awarded him compensation of 3,700 Euros.
If an employee or applicant is discriminated against by the employer, the Equal Treatment Act provides for a compensation claim for the discriminated person. If an applicant is not hired due to his racial or ethnic origin, sex, religion or belief, disability, age or sexual identity, he or she may not demand employment, but shall be entitled to compensation. In such cases, the courts usually award compensation in the amount of three salaries. According to general principles, the person discriminated against would have to prove the occurrence of discrimination in court. This would make it almost impossible for the applicant to ever successfully claim compensation. This is why the legislator switched the burden of proof for such cases to the employer. Accordingly, it is sufficient for the applicant to provide facts, which indicate the occurrence of discrimination. Whenever there are such indications, the employer must prove that no discrimination has in fact occurred. However, the employer will only be able to do so, if it has based its decision on objective criteria and has sufficiently documented this.
The German Federal Labour Court applied these principles in the case at hand:
The failure to invite the applicant for an interview, indicated that the applicant had been discriminated against because of his severe disability. Due to this presumption, the employer had to prove that no discrimination had indeed occurred. Stating that the application had not been processed due to the overflowing mailbox was not sufficient to prove that a discrimination did not occur. The defendant did not present any further explanation and thus failed to fulfil its obligation to provide evidence, with the result that the court assumed that a discrimination had occurred and awarded the applicant compensation.
The Federal Labour Court made clear that the failure to invite a severely disabled applicant for an interview does not itself constitute discrimination, but merely an indication of it. However, the evidence requirements for employers to prove that discrimination did not take place remain high. Employers should therefore document the entire application process in a comprehensible manner so that they cannot be held liable for compensation on grounds of discrimination.
For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Dr. Tobias Pusch (Partner) of Pusch Wahlig Legal at pusch@pwwl.de or visit www.pwwl.de.
