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Discrimination is presumed when the employment of a severely disabled worker is terminated without the agreement of the Integration Office

Judgement of the Federal Labour Court of 2 June 2022 in Case No. 8 AZR 191/21

Failure to obtain the agreement of the Integration Office in accordance with § 168 of the Ninth Volume of the Social Code (SGB IX) when terminating the employment of a severely disabled person will result in a presumption, pursuant to § 22 of the General Act on Equal Treatment (Allgemeinen Gleichbehandlungsgesetz, AGG), that the employment agreement was terminated because of the disability.

Facts of the case

The employee worked as a janitor for a primary school on the basis of a contract that fell under a personnel sharing agreement. He was paralysed on one side of his body following a stroke and declared incapacitated for work on 11 February 2018. The employer became aware of the incapacity on 12 February 2018 through the employee’s then supervisor. The employer terminated the employment relationship at the end of March 2018. In addition to an action for unfair dismissal, which ended in a settlement, the employee brought an action for the payment of damages for discrimination based on his severe disability in accordance with § 15 (2) of the General Act on Equal Treatment (AGG). In his view, the fact that the employer failed to get the approval of the Integration Office before terminating the employment relationship substantiated his claim. When the notice of termination was issued, there was no official verification of his severe disability, nor had the employee applied to be recognised as a severely disabled person. However, the employee argued that his severe disability was so obvious that no verification was necessary.

The judgment

The Federal Labour Court (Bundesarbeitsgericht, BAG) rejected the claim for payment of damages under § 15 (2) of the AGG. The dismissal was direct discrimination within the meaning of § 3 (1) of the AGG, but the employee had failed to sufficiently show that the discrimination was a result of his severe disability. The Court confirmed that the infringement of § 168 of the SGB XI could establish the rebuttable presumption in § 22 of the AGG that the severe disability was “causal” for the discrimination. However, the employee had failed to conclusively prove the infringement of § 168 of the SGB XI. His disability was not evident at the time of the dismissal.

Consequences for practice

This judgment shows that there can already be a claim for compensation under § 15 (2) of the AGG where the (severe) disability has not yet been verified nor has the person applied for verification. Such a claim nevertheless requires that the severe disability was evident to the employer. A disability, even a severe disability, will only be obvious in very exceptional cases. The requirements for the obviousness characteristic are strict: the BAG held that the test was not fulfilled in this case, even though the employee was in intensive care with one side of his body paralysed following his stroke.

Practical tip

Careful attention should be paid to compliance with the procedural duties and/or duty of care with respect to severely disabled persons in daily practice to avoid claims for compensation for discrimination from persons with severe disabilities. Failure to comply with all requirements can lead to a presumption of discrimination based on disability. In the case of job applications, for example, private and public employers must comply with the duties to investigate and the right of participation in accordance with §§ 164 and 165 of the SGB IX respectively. The decision of the BAG makes it clear that the failure to acquire the approval of the Integration Office in accordance with § 168 of the SGB IX may be a fact that would establish a presumption of discrimination and a causal link between the discrimination and the severe disability within the meaning of § 22 of the AGG. If such facts exist, the employer is encouraged to refute the presumption of discrimination on grounds of severe disability. The rebuttal is subject to such strict requirements that the need for one must be avoided.

Sabrina Miersen and Lisa Schrader

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Arbeitsrecht BAG Bundesarbeitsgericht

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Sabrina Miersen T   +49 30 26471-327 E   Sabrina.Miersen@advant-beiten.com
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