In January, the Federal Labor Court (BAG) had to rule on the question of whether a severely disabled employee can claim compensation if the employer does not offer him an increase in weekly working hours, but does offer other employees an increase (judgment of 26.01.2017 – 8 AZR 736/15).
Contrary to the Higher Labor Court of Hesse (judgment of 25.09.2015 – 18 Sa 520/14), the Federal Labor Court has now ruled that compensation is generally possible.
However, it must be established that the employer’s decision was due to the severe disability.
The case was referred back to the Regional Labor Court for a new hearing and decision.
Severely disabled employee as courier driver
Since December 2011, an employee of a company that operates an express shipping and transportation service has been classified as severely disabled with a “degree of disability” of 50.
He works as a courier with a weekly working time of 27.5 hours.
In June 2013, the transport company distributed a total of 66.5 hours – for an indefinite period – to 14 part-time couriers and concluded corresponding amendment contracts with them.
No increase in hours despite repeated requests
Despite repeated requests to increase his working hours, the severely disabled employee was not considered for the increase.
He then brought an action before the labor court for an increase in his hours and, alternatively, for damages pursuant to Section 15 para.
1 AGG.
The amount of damages was based on his loss of profit.
As grounds for the complaint, he argued that he was not taken into account in the allocation of hours due to his severe disability.
This was discriminatory.
§ Section 22 AGG has a circumstantial effect
A person seeking compensation under the General Equal Treatment Act only has to prove evidence of discrimination.
§ Section 22 AGG: “If, in the event of a dispute, one party provides evidence that suggests discrimination on one of the grounds listed in Section 1, the other party shall bear the burden of proving that there has been no breach of the provisions on protection against discrimination.”
High requirement for circumstantial effect.
Mere “possibility” of disadvantage is not sufficient
The BAG has now clarified in its decision that it places very high demands on this circumstantial effect.
In the opinion of the BAG, the circumstantial evidence is only sufficient if it is “overwhelmingly likely” that a reason specified in Section 1 AGG is the cause of the discrimination.
The mere possibility that the discrimination is due to a discrimination characteristic is not sufficient to trigger the effect of Section 22 AGG.
The LAG had prematurely assumed the indicative effect of Section 22 AGG.
However, since the LAG had already made a finding, the BAG could not make a final decision and had to refer the matter back to the Regional Labor Court.
No fundamental rejection of the claim for damages by the BAG
The mere “possibility” of causality for the disadvantage assumed by the LAG will no longer be sufficient in future to be able to bring an action for compensation.
However, it should also be noted that the BAG has not fundamentally denied the possibility of compensation for lost wages.