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Increase of Working also for Disabled Employees!?

On 26 January 2017, the Federal State Labour Court (Bundesarbeitsgericht) ruled that a disabled part-time employee may not claim damages for discrimination where his employer did not offer him an increase in weekly working hours, unlike his colleagues (docket number: 8 AZR 736/15).

In the case at hand, the employer, a courier service provider, employed 16 part-time employees. Due to the acquisition of a new customer the employer was able to offer additional working hours, which the employer offered to 14 employees. He excluded a new joiner as well as the disabled plaintiff, who claimed an increase in his weekly working hours as well as a compensation due to the alleged discriminatory behaviour of his employer.

The claim for the increase in weekly working hours is not covered by the German anti-discrimination rules (AGG – Allgemeines Gleichbehandlungsgesetz). The AGG only provides financial compensation for discriminatory behaviour. Moreover, the Federal Labour Court declined the employee´s reference to the legislative evidence rules. According to sec 22 AGG the discriminating party has to refute the assumption of discriminatory behaviour if the plaintiff provided evidence which leads to a “predominant likelihood” of discrimination. From the judge´s perspective it was only “possible” that the employee had not been offered the increase in working hours for a discriminatory reason, but the causal connection between the employee´s disability and the employer´s decision was not “likely” as required by German anti-discrimination regulations.

This recent decision gives a clear signal to employers. An employee who can refer to an attribute protected by AGG cannot claim any unequal treatment only by referring to this attribute, but will need sufficient evidence which indicates a predominant likelihood that the treatment was discriminatory.