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Christine Wahlig
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Prohibited discrimination between employees with disabilities


The comprehensive principle of non-discrimination in the General Law on equal treatment – GET (“Allgemeines Gleichberechtigungsgesetz” – “AGG”) or the Social Insurance Code (“Sozialgesetzbuch” – “SBG”) is to protect employees with disabilities from discrimination vis-à-vis employees without disabilities.

New perspective on the principle of non-discrimination

A recent decision of the ECJ from 26 January 2021 (file no.: C-16/19) adds a perspective to the principle of non-discrimination that has received little attention up to now: If an employer favors certain employees with disabilities over another group of employees with disabilities, this may also constitute a prohibited discrimination.

Bonus for recognition of disabilities

An employer granted a bonus on top of the monthly salary to employees who submitted to him a certificate of recognition of a disability. This way, the employer wanted to encourage his employees to get their disabilities recognized in order to fulfill his obligation to employ people with disabilities. Hereby, the employer aimed to reduce his payments to a social fund comparable to the German system of mandatory employment and equalisation fee pursuant to sections 154 seq. SGB IX. This matter has now been associated with discrimination because the employer wanted to pay said bonus solely to employees with disabilities who had not yet submitted the certificate to him by a certain deadline. Anyone who had already previously submitted the certificate could not benefit from the financial bonus.

The ECJ’s decision from 26 January 2021 (file no. C 16/19)

Upon referral of the initial court, the ECJ raised considerable doubts regarding this practice and returned the litigation to the national court in Poland for decision with the following binding considerations:

Differentiation within the group of employees with disabilities can constitute a prohibited discrimination, just as with other groups of people with proscribed characteristics within the meaning of the Law of equal treatment. The wording of the Employment Equality Directive (200/78/EC) not only prohibits unequal treatment between employees with and without disabilities, but, in fact, the disability must not serve as ground for less favourable treatment, even in comparison with other employees with disabilities. Therefore, a violation of the principle of non-discrimination always takes place if someone is discriminated due to his/her disability, i.e., if the discrimination is directly linked to the characteristic of disability of the employee concerned.

However, should this not be the case, because the difference in granting the bonus does not directly result from the employee’s disability, this may nevertheless constitute prohibited (indirect) discrimination. This is the case if it proves to be disadvantageous for certain people with disabilities for no objective reason. E.g., employees, whose disability is obvious or who have already had to disclose their disability because their profession requires the use of certain equipment, would be excluded from such bonus payments which depend on a deadline, with the result that the question of direct discrimination is in the affirmative.

Discrimination or unequal treatment?

The ECJ’s decision is understandable. The idea of equal treatment within the group of employees with severe disabilities suggests itself. One part of the group is to receive a bonus for the same activity and the other is not. However, in the end, the employer’s awarded benefit remains the same. Therefore, the question arises as to whether the main issue is actually one of discrimination and not ostensibly one of unequal treatment within a uniform group.

Grounds of discrimination

It should also be considered whether this case law of the ECJ will only be applied specifically to the characteristic of disability or to all relevant grounds of discrimination. This is based on the idea that the characteristic of disability differs from other relevant grounds of discrimination: The difference lies in the fact that all employees are equal with regard to all other characteristics and that they can only be distinguished by reference to the one characteristic. Meanwhile, there is a difference between people with and without handicap and, at the same time, a commitment to actively eliminate this difference through appropriate measures. However, the issue of equal treatment within a group of people with certain characteristics underlying the ECJ’s decision is not limited to the particularity of the characteristic of disability but can also be applied to other groups of characteristics. Therefore, in practice, employers will have to increasingly focus on the effects of their measures within the group of people with certain characteristics in the future.The ECJ’s grounds of the judgment regarding the characteristic of disability show that this does not only apply if, as in the original decision, the employer expects savings in the equalisation fee to be paid. On the contrary, in general, affirmative actions which differentiate, for example, according to the type, severity, or obviousness of a disability may be at risk of being subject to charge of discrimination. In this case, the employer still has the option of justifying the difference in treatment on objective grounds.

Dr. Paul Brummer

Dr. Paul Brummer specializes in drafting of employment contracts, bonus plans, non-competition clauses and termination agreements as well as in issues relating to works constitution law.

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