National judgements:

Wording "the employee declares that he is not subject to the provisions of the Severely Disabled Persons Act at the time of conclusion of the contract" as discrimination

Hamburg Regional Labour Court, judgment of 30.11.2017, 7 Sa 90/17

The defendant submitted an offer of employment to the seriously disabled plaintiff after a trial period. The employment contract already signed by the defendant included the following wording: "The employee further declares that he is not subject to the provisions of the Disabled Persons Act at the time the contract was concluded". The applicant asked the defendant to delete that wording. As a result, the defendant withdrew its recruitment offer.

The Hamburg Regional Labour Court stated that the wording in question in an employment contract, which is submitted to the applicant for signature, already constitutes direct discrimination on the grounds of severe disability in accordance with § 3 sentence 1 AGG. It leads to less favourable treatment than that accorded to applicants who are not severely disabled, without this being justified, since it creates a decision-making situation and thus a conflict of conscience which may have negative consequences for the employee who is to sign the clause or employment contract. The*applicant* only has the choice to deceive his new employer about his severe disability when entering into the employment relationship or to disclose himself and his severe disability before signing the employment contract. Both can have potentially negative effects on him. However, the protection of the personality rights of severely disabled persons requires that they*should in principle be able to decide for themselves when, in what way and for what reason they*want to notify the severely disabled person to whom. The severely disabled employee is in a less favourable situation than non-disabled applicant.

By standardising this prohibition, the legislator has made it clear that the linking of a selection decision to a severe disability is inadmissible as long as there is no exception pursuant to § 8 AGG. The economic and organisational burdens that the recruitment of a severely disabled applicant may entail for the employer are therefore acceptable. As a result, the expectation that the employer will make a declaration as to the existence of a serious disability usually proves to be inadmissible.

The plaintiff was awarded compensation of three months' gross salary.

Dismissal due to HIV infection

BAG, judgment of 19.12.2013 - 6 AZR 190/12 and Higher Labour Court of Berlin-Brandenburg, settlement dated 06.06.2014 - 6 Sa 370/14, Berlin Labour Court, judgment of 21.07.2011 - 17 Ca 1102/11

The defendant hired the plaintiff as a chemical-technical assistant. The company produces medicine for cancer treatment that is injected intravenously. The applicant was to be employed in the so-called cleanroom area. The employment was temporarily limited, considering the first six months as probationary period, within which the employment relationship could be terminated with a notice period of two weeks.

During the recruitment examination of the plaintiff an HIV infection was ascertained. The applicant is asymptomatic. He has a degree of disability of 10. The company's doctor expressed concerns regarding the employment of the plaintiff in the clean room area.

The defendant terminated the employment relationship.

The applicant claimed that the impugned notice of dismissal discriminates against him since his HIV infection was the sole reason for termination. An asymptomatic HIV infection should be protected from discrimination. Therefore, he was entitled to compensation. Taking into account the specific manufacturing process and the specific activity of the plaintiff the HI virus would not be transmitted by the plaintiff to the medication manufactured by the defendant under any circumstances, not even through cuts or needlestick injuries.

It was questionable whether an HIV-infected person could claim protection from discrimination on grounds of disability. A disability by the meaning of § 1 AGG occurs when the physical function, mental ability or mental health of a person is limited in the long term and therefore their participation in society, including participation in professional life, can be substantially impaired.

The Berlin Labour Court ruled that an HIV infection is not a disability falling under the scope of the AGG. During the appeal, the State Labour Court Berlin-Brandenburg considered a possible unequal treatment as lawful since the employer had a legitimate interest in excluding any impairment of drug production by infected workers (see here). In the third instance, the Federal Labour Court then referred the matter back to the decision of the Regional Labour Court of Berlin-Brandenburg. There, the parties settled the dispute by a comparison.

Persistent diseases with restrictions can be considered equivalent to disability

ECJ, Judgment of the Second Chamber of 11.04.2013, HK Danmark v Dansk almennyttigt Boligselskab (C-335/11) and Dansk Arbejdsgiverforening (C-337/11)

A Danish trade union had brought an action for damages on behalf of two workers for dismissal with reduced notice. According to Danish labour law, employers can terminate the employment contract with a "shortened notice period" of one month if* the employee has been absent for 120 days due to illness with continued pay within the last 12 months. The Danish trade union argued on behalf of the workers that the employers should instead have offered the two workers a reduction in working hours because they had a disability. In addition, the Danish legislation concerning the shortened notice period is not applicable in this case since their sick leave is due to the disability and the provision would otherwise constitute unlawful discrimination on grounds of disability under, inter alia, Directive 2000/78/EC on equal treatment in employment and occupation.

In this context, the competent Danish court referred to the European Court of Justice a reference for a preliminary ruling clarifying the concept of disability and the possibility of a reduction in working time as an appropriate precautionary measure. It also wanted to know whether the Danish provision on shorter notice periods was contrary to Union law.

The ECJ again clarified the distinction between disease and disability (see above, ECJ, Chacón Navas, C-13/05). A disability is not an illness but a limitation of long duration, due to physical, mental or psychological impairment, which is an obstacle to the participation of the person concerned in working life. It added that the term may include a curable or incurable disease that involves physical, mental or psychological limitation. This should then be treated as a disability and thus covered by the protection against discrimination.

Employees with long-term illnesses can therefore be treated on an equal footing with employees with disabilities and enjoy special protection against dismissal or claim appropriate assistance. Article 5 of Directive 2000/78/EC requires employers to take appropriate and proportionate precautionary measures, to enable persons with disabilities to have access to employment, to pursue a profession and to advance in that profession. In this respect, a reduction in working time can be an appropriate precautionary measure to enable people with disabilities to access employment. Insofar as chronic or permanent illnesses are the cause of absenteeism, dismissals due to illness are permissible in principle, but under more difficult conditions.

In addition, a shortened statutory notice period may inadmissibly discriminate against employees with disabilities due to long absences. The ECJ obliges national courts to examine whether a regulation adequately pursues a legitimate aim or is too much to the detriment of employees with disabilities.

ECJ judgements:

Differentiation of 'disease' and 'disability' (Sonia Chacón Navas)

Subject of the proceedings was the dismissal due to illness-related work stoppage. Essential was the distinction between the definition of disability and the term disease.

An employee who is dismissed by the employer solely owing to his/her illness is not covered by the general framework of the Directive to combat discrimination on grounds of disability. According to the CJEU judgment an illness can not be regarded as a ground which prohibits discrimination against a person in accordance with Directive 2000/78.

CJEU verdict of 11.07.2006 - Case C 13-05