Germany: Prohibited Discrimination between Employees with Disabilities

The decision

A recent decision of the European Court of Justice (ECJ) dated 26 January 2021 adds a perspective to the principle of non-discrimination that has received little attention up to now:

An employer granted a bonus on top of the monthly salary to employees who submitted to him a certificate of recognition of a disability. This way, the employer wanted to encourage his employees to get their disabilities recognised, so that he can fulfill his statutory obligation to employ people with disabilities. Hereby, the employer aimed to reduce his payments to a social fund.

Said bonus was solely to be paid to employees with disabilities who had not yet submitted the certificate to him by a certain deadline. Anyone who had already previously submitted the certificate could not benefit from the financial bonus offered by the employer. This was challenged in court by a disabled employee who had already submitted the corresponding certificate to the employer and was thus not considered for the bonus.

Upon referral of the initial court, the ECJ raised considerable doubts regarding this practice and returned the litigation to the national court in Poland for decision with the following binding considerations:

• Differentiations within the group of employees with disabilities can constitute a prohibited discrimination, just as with other groups of people with proscribed characteristics within the meaning of the law of equal treatment.
• The wording of the Employment Equality Directive (200/78/EC) not only prohibits unequal treatment between employees with and without disabilities, but the disability must not serve as ground for less favorable treatment, even in comparison with other employees with disabilities. Therefore, a violation of the principle of non-discrimination always takes place if someone is discriminated due to disability.
• This is not the case, if the difference in granting the bonus does not directly result from the employee’s disability. Nevertheless, this may constitute prohibited (indirect) discrimination. That is the case if it proves to be disadvantageous for certain people with disabilities for no objective reason. E.g., employees, whose disability is obvious or who have already had to disclose their disability because their profession requires the use of certain equipment, would be excluded from such bonus payments which depend on a deadline, with the result that the question of direct discrimination is in the affirmative.

Follow-up considerations under German law

The ECJ’s decision is not limited to the particularity of the characteristic of disability but can also be applied to other groups of characteristics. Therefore, in practice, employers will have to increasingly focus on the effects of their measures within the group of people with certain characteristics in the future. That does not only apply if, as in the original decision, the employer expects savings in the equalisation fee to be paid. On the contrary, in general, affirmative actions which differentiate, for example, according to the type, severity, or obviousness of a disability may be at risk of being subject to charge of discrimination. In this case, the employer still has the option of justifying the difference in treatment on objective grounds.

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 Workplace Law at pusch@pwwl.de or visit www.pwwl.de.