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Regional Labour Court of Schleswig-Holstein: Compensation claim for discrimination after applying for a job via eBay Classified

Judgment of the Regional Labour Court of Schleswig-Holstein of 21 June 2022 in Case No. 2 Sa 21/22

An applicant, who used the chat function on the online portal “eBay Kleinanzeigen” to apply for a job advertised on the site fulfils the definition of an applicant in § 6 (1) 2nd sentence of the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). Neither his repeated enquiry about whether the advertiser was only looking for a woman nor the fact that he used a “form” for the pre-trial enforcement of his compensation claim constituted an abuse of rights, as claimed by the employer. Neither provides sufficient indication of a pseudo application which is solely designed to be able to subsequently claim compensation.

Facts of the case

A small business with an auto repair shop ran an ad in the positions vacant section of eBay Kleinanzeigen (eBay Classified). The ad stated: “Secretary wanted! We’re looking for a secretary to start immediately. Full-time/part-time: It would be great if you have experience. …” The ad used Sekretärin, the feminine form of Secretary in German. The claimant answered the ad via the chat function and described in a few sentences his reasons for wanting the position. He referred to his office experience and made it explicitly clear that he was applying for the position. He also asked the defendant whether they were only looking for a woman for the position. The company also used the chat function to reject his application, stating that they were looking for “a lady for the secretarial position”. The male claimant saw discrimination based on sex in the rejection of his application and claimed compensation equivalent to three times the gross monthly salary from the company. The company rejected his claim, arguing that his application was only designed to allow him to claim damages and should therefore be considered an abusive use of the law.

The judgment

The Labour Court in Elmshorn rejected the claim for compensation because the claimant was not an applicant. The Court categorised the claimant’s response to the position vacant as him “making contact” because he failed to provide sufficient personal information. However, the Regional Labour Court of Schleswig-Holstein held in favour of the Applicant.

The informal application made via the chat function in eBay Kleinanzeigen gave the applicant the necessary status under the AGG. Those who take the unusual step of advising a position via eBay Kleinanzeigen must expect that they will receive applications for the position which do not take the classical written form and are not accompanied by extensive application documents. In addition, the law does not require any minimum level of personal information. Simply, the applicant must be identifiable. The Regional Court also rejected the claim that the Claimant had abused his legal rights. The defendant’s repeated questions about whether the company was only looking for a woman for the position was not sufficient indication that the applicant only applied for the position to claim compensation under the AGG. As the claimant’s application was only rejected because of his sex, he was entitled to claim compensation.

Consequences for practice

The judgment provides legal clarity on the status of an applicant in online recruiting scenarios and shows that even small companies should be sensitised to the requirements of the AGG. It makes it clear that these requirements also need to be considered when a job is advertised via online portals and digital channels. The Regional Court of Schleswig-Holstein makes it unmistakeably clear that the recruitment procedure can start when a short response to a position vacant ad is received via an online chat. Accordingly, a person who applies for a position vacant that is advertised online by sending just a few sentences via the chat function will be an applicant within the meaning of the AGG. In addition, the judgment confirms the high hurdles established in the case law for the claim of an abuse of rights. Accordingly, the circumstances must generally indicate that the claimant’s application is part of a systematic “business model”. To the extent that the applicant may be seriously interested in the position, such systematic circumstances will not be present.

Practical tip

As companies are increasingly using online channels for recruitment (e.g., LinkedIn, Xing, WhatsApp), it should be noted that the application procedure can start when a chat message is received. Accordingly, the HR team should take the same care when answering a chat on behalf of the potential employer that they would take when placing an online position vacant ad and ensure that they do not discriminate against applicants. A hasty chat response could potentially result in a claim for damages under the AGG.

Jonas Türkis

TAGS

Bewerbungsverfahren Stellenausschreibung ebay Kleinanzeigen Diskriminierung Recruiting