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Termination of employment of HIV-infected employee may trigger anti-discrimination legislation

The German Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on December 19, 2013 (docket number – 6 AZR 190/12) that terminating the employment relationship of an employee because of his HIV-infection may trigger German anti-discrimination laws and, therefore, be invalid. In addition to being reinstated (which would be the remedy for an invalid termination) the employee may be entitled to damages.
In the case at hand, the employer produced intravenously administered drugs for cancer treatment. The employee who was living with a symptomless HIV-infection was working as a chemical-technical assistant in a cleanroom. During his pre-employment medical exam the employee had informed the company medical officer about his HIV-infection and the medical officer considered him unfit to work in the cleanroom because of the HIV infection. After having been relieved from the confidentiality obligation, the medical officer informed the employer who immediately terminated the employment. In the following litigation, the employer gave the HIV infection as the only reason for the termination. The Federal Labour Court ruled that an HIV-infection qualifies as severe disability under the German anti-discrimination legislation. As the employment relationship was terminated only due to the infection, the employee was discriminated against for reasons of disability by the termination. Such a termination would only be justifiable if suitable precautions could not have enabled the plaintiff to work in the cleanroom. The Federal Labour Court has now sent the case back to the Higher Labour Court and instructed the Court to clarify whether or not the termination could be justified in this sense.
Regardless of the actual outcome of the case, the Federal Labour Court has once again widened the scope of the interpretation of Germany’s anti-discrimination legislation.