April 2017 Blog

Further facilitation for employers regarding claims under the General Equal Treatment Act

On 26 January 2017, the Bundesarbeitsgericht (federal labour court) effected a significant aggravation of the burden of proof for employees as regards the burden of proof regulation of Section 22 Allgemeines Gleichbehandlungsgesetz (AGG) (General Equal Treatment Act).

Facts of the Case

The severely disabled claimant in an express courier company had been ignored in an increase of the part-time jobs, in the context of which approx. 70 weekly hours had been distributed among 14 employees. The claimant lost the case before the labour court, however, the local labour court Hessen granted to him damages in the amount of lost income. The federal labour court has now set this decision aside and referred the case back to the local court. According to the federal court, there have to be indications suggesting that most probably a ground for discrimination was the cause for the disadvantage. The local court had merely found the possibility of causality. The court now has to further clarify the facts of the case.

Legal Background

Pursuant to Section 22 AGG, in the event of a dispute, the employee has to prove indications suggesting discrimination due to a prohibited ground for discrimination mentioned in the AGG (e.g. age, sex, religion). The employee bears the burden of proof to show that there was no violation of the regulations on the prevention of discrimination. This wording, which is actually fairly clear, was now interpreted by the federal court as follows: It would not suffice if the indications made a discrimination seem likely. Rather, it would have to be most probable that one of the prohibited grounds for discrimination were the cause of the discrimination.

Practical Consequences

In practice, the decision makes it significantly easier for employers to handle anti-discrimination claims

(Bundesarbeitsgericht, decision of 26 January 2017 – 8 AZR 736/15)

Christof Kleinmann, Attorney at Law and Accredited Specialist in Labour Law
Frankfurt am Main