For employers interviewing potential workers in Germany, the case law remains as strict as ever. The bottom line: Take the greatest possible care in job advertisements and the application and interview processes.
An employer has been punished in court once again for negligence during the job application process. The federal labour court (Bundesarbeitsgericht, or BAG) recently required the defendant state of North Rhine-Westphalia to pay compensation of EUR 3,717.30 to a plaintiff. The reason? The state did not invite an applicant who identified as severely disabled to an interview, even though the applicant was not technically unsuitable for the position. What happened?
Facts
The plaintiff had applied for a bailiff position advertised by the Cologne Higher Regional Court. In his application, he referred to his existing disability and his status as a severely disabled person. However, he was not invited to an interview by the defendant state. He sued and asked for compensation of EUR 7,434.39 – that is, three months of a bailiff's salary. The defendant state responded by asserting that the application had not been processed due to a rapidly overflowing Outlook mailbox, so it was simply overlooked; any disadvantage due to the plaintiff’s disability had, therefore, not occurred.
Legal background
If a public employer receives an application from a severely disabled (or equivalent) person, and that person is not obviously unsuitable for a job opening, the law requires that the employer must always invite the applicant to an interview. If the employer fails to do so, this is taken as an indication that the applicant was not hired due to his or her severe disability or similar status.
The employer can refute this presumption of discrimination - at least in theory. To date, however, the labour court has been strict: once there is evidence of discrimination, claims asserted with a demand for compensation are generally successful.
BAG decision
So it is in this case, too: The BAG awarded the plaintiff compensation equalling a monthly salary of EUR 3,717.30.
Conclusion
The plaintiff's application was submitted to the defendant state and the applicant was not unsuitable in any obvious way for the advertised position. The defendant should have invited the plaintiff to an interview. The non-invitation amounted to a disadvantage based on disability. The defendant could not successfully refute this assumption, either; the overflowing email inbox was not considered a sufficient excuse.
Practical tips
Employers should keep the following in mind:
- inquire with the employment agency about suitable severely disabled applicants;
- advertise vacant positions in gender-neutral terms;
- do not include any references to age or other protected status; and
- establish reliable hiring processes, starting with the processing of incoming applications, non-discriminatory interviews, and non-discriminatory feedback to applicants.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
