Better learn English….

The Higher Labour Court Hamburg (Landesarbeitsgericht, LAG) ruled on May 19, 2015 that a request for very good English skills in a job advertisement is not discriminatory if English is the prevailing communication language in the relevant working field (docket number 5 Sa 79/14).

According to the Equal Treatment Act (Gleichbehandlungsgesetz, AGG) as a general principle, employees and job applicants may not be discriminated against on the grounds of race, ethnic origin, gender, religion or belief, disability, age or sexual identity; otherwise, the employee/applicant can, amongst other remedies, claim compensation. In the event that a job application is unsuccessful, however, the AGG does not allow the applicant to claim actual employment. To be granted compensation by the labour courts, employees/applicants only need to show and prove an inference of discrimination. In this case, the employer must then exonerate itself, i.e. show and prove that the employee/applicant was not actually being discriminated against which, of course, can be very difficult.

In this case, the defendant, who sells online pc games, had posted a job advertisement for a Java-Developer, requesting very good English and German skills, including a very good level of written and spoken English. The plaintiff was of Russian origin and claimed that her German and English were good. Her application for the position as Java-Developer, however, was unsuccessful. The plaintiff argued that the defendant had discriminated her against due to her ethnic origin by requiring very good English skills for the position, and claimed that she was not employed due to this discrimination. Therefore, she claimed compensation under the AGG. The LAG, however, found that requiring very good English skills for the Java-Developer position was justified and therefore the plaintiff’s allegations were unsuccessful in showing discrimination. A Java-Developer was not only required to write software programs but also to work in a team, coach co-workers and transfer knowledge. Therefore, requiring very good English skills was legitimate and also not unreasonable.

In various employment sectors, work is becoming more and more international, making very good English communication skills crucial for many employers. For this reason, job advertisements often explicitly state that candidates are required to have a very good level of written and spoken English. The decision of the LAG is therefore important, particularly as it may deter fake-candidates systematically looking for discriminatory job advertisements in order to apply for a position (the so-called AGG hopper). However, employers should still, in every single case, review whether particular language skills are actually required for the advertised position; otherwise, unsuccessful applicants may still potentially be able to claim compensation under the AGG.