Judgment of the Federal Labour Court of 25 January 2021 in Case No. 8 AZR 313/21
If an employer breaches provisions containing procedural and/or support obligations designed to benefit persons with severe disabilities, this breach will normally establish a statutory presumption that the unsuccessful, severely disabled applicant was not included in the selection/hiring procedures due to their disability and was therefore disadvantaged. Such provisions include the first sentence of § 165 of the Ninth Volume of the Social Code (Sozialgesetzbuch, SGB IX), according to which public employers must notify the Employment Agency at an early stage of any new vacancies or new positions that need to be filled. Publication of the position on the job board of the Federal Employment Agency (Bundesagentur für Arbeit, BA) will be insufficient to fulfil this requirement.
Facts of the case
A severely disabled applicant with a 50% degree of disability claimed compensation from a district because his application for a position with the district was unsuccessful. In 2017, the district published a position vacant notice on the job board of the BA for a position as “Director Legal Office and Local Council (lawyer),” to be filled from January 2018. According to the job description, the position required the applicant to have successfully completed a university degree in law or equivalent and have several years of relevant professional and managerial experience. Although the Claimant did not fulfil these requirements, he applied for the advertised position in November 2017, indicating his severe disability. The district did not invite the applicant in for an interview but informed him instead in April 2018 that they had selected another applicant. In response, the Claimant submitted a claim for compensation to the district under § 15 (2) of the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). He criticized the fact that he, as an applicant with severe disabilities, was not considered during the preliminary procedure of the selection process. When he did not receive a response from the district, he brought his claim for compensation under § 15 (2) of the AGG before the Court.
While the Court at first instance dismissed the claim for compensation because the Claimant clearly did not fulfil the specifications of the position, the Federal Labour Court decided in his favour. He was disadvantaged due to his severe disability. The claim for compensation under § 15 (2) of the AGG was therefore established. Contrary to the requirements of the first sentence of § 165 of the SGB IX, the district failed to notify the relevant Employment Agency of the advertised position, which could be filled by a person with severe disabilities. The publication of the position on the job board of the BA could not (yet) be qualified as notification within the meaning of the first sentence of § 165 of the SGB IX. The infringement of the notification requirement under § 165 of the SGB IX was enough to establish the statutory presumption under § 22 of the AGG, that the Claimant was not considered because of his severe disability and was therefore disadvantaged.
Consequences for practice
The judgment makes public employers aware of just how strictly the Federal Labour Court will assess formal breaches of the law related to persons with severe disabilities during the recruitment process. Although the lower courts found that the Claimant was obviously not suitable for the advertised position because he did not have the relevant professional experience, the Claimant was still presumed to be disadvantaged in the application process due to the district’s failure to fulfil a formal requirement and notify the Employment Agency. If the notification had been made, the compensation claim would probably have been unsuccessful before the Federal Labour Court, too.
In line with this judgment of the Federal Labour Court, public employers should ensure that they properly notify the appropriate Employment Agency of any positions which a person with severe disabilities could fill before advertising the position. In this respect, publication of the position vacant on the job board of the BA will not be sufficient.