Compensation in the event of alleged discrimination and the abuse of rights

Outlines of the prohibition of discrimination

The prohibition of discrimination regulated in the General Equal Treatment Act (AGG) is one of the main provisions of the AGG and includes a general prohibition of discrimination against employees as well as job candidates. Characteristics which are legally protected against discrimination include i.a. race, ethnic origin and disability. Applicants or employees who suffer discrimination have the possibility to claim compensation (Sec. 15 AGG), especially monetary damages for pain and suffering. The BAG assigns this claim a dual function. On one hand, it is intended to fully compensate for the damage caused by discrimination. In addition, it is supposed to have a deterrent effect and thus prevent discrimination.

What happened in the specific case?

In the decisive case, the parties were in dispute as to whether the defendant, a public sector employer, was obliged to pay the severely disabled plaintiff compensation according to Sec. 15 para. 2 AGG. The reason for the lawsuit was the non-inclusion of the plaintiff's application for a vacancy. The plaintiff had previously been employed by the defendant on a full-time basis. The employment relationship was then terminated by the employer due to several disputes between the plaintiff and its Human Resources Manager. Relevant to the present facts was in particular the allegation by the plaintiff in the context of the proceedings for protection against dismissal, of having felt "fear for life and limb" during his employment relationship with his supervisor. As a result of the action for protection against dismissal, the employment relationship was terminated by court settlement.

Several months after receipt of the termination notice and directly following the court settlement, the plaintiff applied for several vacancies at the defendant. With regard to the application relevant to this judgement, the plaintiff was invited to a job interview and was offered alternative appointments after the plaintiff rejected the first proposed appointment. Upon renewed rejection of the alternative appointment and request for another alternative, the defendant did not respond and lastly rejected the plaintiff as an applicant. The plaintiff accuses the defendant of violating its obligation to invite him to the job interview and demanded compensation for discrimination based on his severe disability.

The defendant pleads an abuse of rights.

Abuse of rights

The BAG did not decide whether the plaintiff had experienced discrimination due to his severe disability. It was also not decided whether the defendant, as a public employer, had violated its legal obligation to invite severely disabled persons to a job interview. As a rule, failure to comply with an existing obligation to invite severely disabled persons to an interview triggers the presumption of discrimination on the grounds of severe disability.

Public employers can be exempted from their invitation obligation if the applicant is obviously not personally qualified for the job. However, this can only be assumed if deficiencies of character constitute an obvious obstacle to employment and the invitation is therefore a mere formality. However, no such situation applied in this case. Without deciding on a possible violation, the BAG rejects the claim for compensation due to the conclusive objection of abuse of rights (Sec. 242 BGB). A right established or acquired through unfair conduct is generally not worthy of protection.

Such dishonest conduct is assumed in the phenomenon of "AGG-Hopping". "AGG-Hoppers" are persons who hold a characteristic protected under the AGG and apply for vacancies without real interest in them. Rather, they proceed with the aim of asserting claims for compensation under the AGG due to a faulty application process or an (allegedly) discriminatory rejection. According to earlier case law, a claim for compensation required the seriousness of the application. However, after this case law was overruled and a more formal applicant definition is now used, the burden of proof was reversed to the detriment of the employer since he must now prove that the applicant acted in abuse of rights, which is often challenging in practice.

In the present case, the BAG did not refer to "AGG-Hopping", although the facts of the case would indicate this. The BAG also determined the dishonest behavior of the plaintiff by stating that he did not apply to actually obtain the advertised position, but only to obtain the applicant status. The plaintiff's sole aim had been to create the precondition for claiming compensation. The defendant provided evidence of this abusive conduct by referring to earlier statements by the plaintiff. The plaintiff had reported discrimination, fear for his life and limb and bullying in his written statement as part of the dismissal protection proceedings that had previously been ongoing between the parties. He further argued that these experiences had led to a "causal incapacity to work". In particular, the experiences he reported were related to the supervisor, who was also responsible for the advertised position. Under these aspects, the BAG assumed that the plaintiff could not have had serious intentions with regard to the newly advertised position, since it was precisely in this work environment that he saw his health threatened.

What impact does this decision have on employers?

The BAG once again imposed limits on the assertion of compensation claims by raising the objection of abusive conduct. This seems to be necessary in order to protect the employer and to better be able to prevent "AGG-Hopping". However, the BAG itself is responsible for this circumstance after it no longer qualifies the seriousness of an application as a prerequisite for the claim to compensation. The judgment is nevertheless not surprising. However, it demonstrates that "AGG-Hopping" continues to be a relevant issue in labour law practice and that there is need for action in this regard.

Welcome is the BHG'S consideration of the possible criminal liability of "AGG-Hopping". According to its decision, the abuse of rights by filing claims for compensation is punishable as fraud. This is certainly not a relief for the employer, rather a mild consolation.

The employer can only be advised to provide conclusive documentation in the event of suspected "AGG-Hopping" and comparable cases and to raise the objection of abuse of rights in the event of a lawsuit.