Clear indication of severe disability also necessary for subsequent applications
(Federal Labour Court (BAG), Judgement of 2014-09-18 – 8 AZR 759/13)
The claimant has a severe disability with a disability level of 50. He first applied to the respondent university in June 2010. This application process, in which the advocacy office for persons with severe disabilities was involved, remained unsuccessful for the claimant, despite his being granted an interview.
In 2014, the claimant applied again to the respondent via email for a newly advertised position. The application included an application letter, a curriculum vitae in table form, a photo of the applicant as well as other enclosures totalling 29 pages. The claimant did not make reference to being a person with a severe disability in either the application letter or in his curriculum vitae. Nevertheless, between two continuing education certificates, a copy of his special identification card as a person with a severe disability from 2008 was included in the application enclosure package, which was organised chronologically. The human resources officer that processed this application was not the same one that processed the first application. The claimant's application was rejected without the claimant being invited to an interview. The claimant regarded this as discrimination on account of his disability since the respondent university, being a public employer, failed to invite him to an interview in breach of section 82 sentence 2 of the Book IX of the German Social Code (SGB IX); the claimant then asserted compensation claims in court.
Different to the courts of prior instance, the action for payment of compensation was not successful in the court of appeal. The 8th Chamber of the BAG rejected the compensation claim since a person with a severe disability who, in applying for a position, wishes to take advantage of the special protection and assistance pursuant to SGB IX, must disclose that he or she is a person with a severe disability in the application letter or, with clear emphasis, in the curriculum vitae. Inconspicuous disclosure or a copy of the special identification card issued to persons with severe disabilities placed among the other application documents do not constitute sufficient disclosure for the potential employer. Furthermore, the severe disability status must be disclosed again in every individual application. This is because the decisive factor is having the severe disability status at the time of the application, not at an earlier time. Moreover, data protection law must be observed. It is solely the decision of the person with a severe disability whether they wish to have their severe disability taken into account in the application pursuant to SGB IX, or not.
Recommendation for practice:
The judgement of the BAG, which up to this point exists only in the form of a press release, is to be welcomed without reservation as it further establishes previous case law in the interest of legal certainty. If the employer has no knowledge of an applicant's status as a person with a severe disability, or equivalent status, the employer must be informed of the disability. The disclosure must be clear and appear in a prominent place so that employers can comply with their obligations under SGB IX and so that they do not miss the applicant's severe disability status when reading through the application. Inconspicuous disclosure or indirect indications in the enclosed official documents are not sufficient.
Dr. Alexander Krol, lawyer
and specialist lawyer for