Employment Law

German employment law: more rights for disabled job seekers

Germany’s Federal Employment Appeals Tribunal has decided to strengthen disabled job seekers’ employment prospects. From now on, public authorities should invite all disabled job applicants who fulfil the qualification requirements for interview (24.01.13, Az. 8 AZR 188/12).

Disabled job seekers to be given greater opportunity to attend interviews ©-Thomas-Jansa-Fotolia

Disabled job seekers to be given greater opportunity to attend interviews ©-Thomas-Jansa-Fotolia

Discretion removed

The decision means that public officials may no longer exercise any discretion when deciding whether to invite disable job applicants for interview. Appropriately qualified disabled people who apply for a position will all need to be invited to interview, even if there are hundreds of applications.

In the case before the Federal Employment Appeals Tribunal, 126 people applied for a position in North Rhine-Westphalia (NRW). The authorities invited 8 applicants to interview, two of which were disabled.

Disabled job seekers

The claimant in the case, who was also a disabled job seeker, was not invited to interview and later brought a claim against NRW for discrimination.

The legal position is clear: disabled persons fulfil the professional specifications, must be invited to an interview. Each disabled job applicant is therefore individually entitled to be interviewed. The authorities cannot counter, that by inviting two disable persons, they had fulfilled their duty. It was also irrelevant that the authorities’ representative of disabled employees took part in the selection procedure.

The tribunal found that all suitably qualified disabled job applicants should have the opportunity to convince public employers of their suitability for the position; they cannot be denied this opportunity.

Compensation of discrimination

The case will now be remitted to the lower courts for a decision on the level of compensation to be awarded to the claimant. It seems a mitigating factor could be that the authorities made genuine attempts to consider the position of disabled job seekers. The initial award by the court of first instance of 3,728 euros compensation, representing two monthly salaries, will most likely be reduced.

Nicola Simon ist Fachanwältin für Arbeitsrecht. Sie hat sich sowohl auf die Beratung der Arbeitnehmer, als auch der Arbeitgeber und Betriebsräte spezialisiert. Seit 2008 ist sie Referentin beim Medien- und Gründerzentrum.

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