In Germany, discriminating against disabled employees is prohibited by the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz). This law provides very comprehensive protection against discrimination of any kind. In addition, severely disabled employees have special rights and protection under the German Social Code (Sozialgesetzbuch IX).
1 General Equal Treatment Act
As this law transposed a European directive into German law, the concept of ‘disability’ must be understood in light of the European directive as referring to a “limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life”. According to the European Court of Justice, this concept includes a condition caused by an illness that entails a limitation which results in particular from physical, mental or psychological impairments which may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.
The German Act protects employees suffering from a disability in this sense against any discrimination in connection with:
- conditions for access to employment and self-employment, including selection criteria, recruitment and promotion;
- employment and working conditions, including remuneration and terms relating to dismissal, (in particular in individual employment contracts, collective bargaining agreements and provisions to implement and terminate an employment relationship, as well as for promotion);
- access to all types and to all levels of vocational training, advanced vocational training and retraining, including practical work experience; and
- membership of and involvement in any organisation of workers.
Any provisions in an agreement which are held to be discriminatory will be invalid. In addition, any discrimination by the employer or other employees is deemed to be a violation of the contractual obligations between the employer and the employee.
The law requires employers:
- not to advertise a vacancy in a discriminatory way;
- to take measures necessary to ensure protection against discrimination, including preventive measures (e.g. training, implementing policies etc.);
- to draw attention to the unacceptability of such discrimination in a suitable manner, in particular within the context of training, and to use their influence to ensure that such discrimination does not occur;
- where one employee discriminates against another, to take suitable, necessary and appropriate measures to put a stop to the discrimination (including cautioning, moving, relocating or dismissing the discriminating employee); and
- to take suitable, necessary and appropriate measures to protect the employee in question, where he or she is discriminated against by a third party in the course of his or her employment.
Where there is discrimination, the affected employees may choose from the following remedies:
- Right to complain: Employees may complain to the relevant department in the company when they feel discriminated against in connection with their employment,
- Right to refuse work: Where the employer takes no or obviously unsuitable measures to stop harassment (including sexual harassment) in the workplace, the affected employees have the right to refuse to work without loss of pay insofar as this is necessary for their protection.
- Right to claim damages and compensation for non-economic losses (if a person is not recruited as a result of discrimination the compensation cannot exceed three months’ salary).
- In addition, it is prohibited to victimize any employees who assert these rights.
However, the employee may not claim the establishment of an employment relationship, a vocational training relationship or promotion, unless such a claim results from another legal ground.
2 German Social Code
Severely disabled persons or disabled persons statutorily treated as such are additionally protected under the German Social Code. It defines disabled persons as “individuals whose bodily functions, mental abilities or mental health are highly likely to deviate for more than six months from the state which is typical for their age and whose participation in society is therefore impaired”. Severely disabled persons are those with a disability of grade (Grad der Behinderung) 50 or more. Disabled persons with a disability of grade 30 to 50 may be statutorily treated as severely disabled by a decision of the competent authority if, otherwise, they cannot obtain or keep a suitable job.
Employees of this kind have in particular the following special rights and protection under the German Social Code:
- Employers offering more than 20 positions have to employ a certain number of disabled employees in order to avoid a statutory compensation payment (Ausgleichsabgabe) to the Integration Office.
- Disabled employees are entitled to an additional five days of holidays per year.
- Disabled employees can only be dismissed with the prior consent of the appropriate authority.
- Disabled employees are entitled to an accessible workplace.
- Disabled employees are entitled to work part-time, if this is necessary due to their individual handicap
- Where more than five disabled employees are employed, a representative of the disabled employees must be elected who, has for example to be notified and be given the opportunity to comment regarding all matters concerning a disabled person.
In summary, within the legal framework of the General Equal Treatment Act, disabled employees in Germany are well protected against any kind of discrimination and, additionally, have special protection and rights under the German Social Code.