An HIV-positive employee without symptoms does have a disability and can claim disability discrimination under The German Equal Treatment Act, the German Supreme Court held.
When an employer terminates the employment of such an employee because of the employee's HIV infection, the dismissal is, as a general rule, discriminatory and thus invalid if the employer could have made it possible for the employee to perform his or her work, despite the disability, by implementing reasonable precautionary measures.
Ultimately, the judges ruled that the dismissal of the employee was a direct discrimination based on his disability. It was unclear, however, whether it was nonetheless justifiable. The previous instance decision, in the Berlin-Brandenburg Regional Labor Court, would thus still have to rule on whether the pharmaceutical company could have made it possible for the employee to perform his work as a laboratory technician in a "clean room" by implementing reasonable precautionary measures, despite the company's internal rules prohibiting employment in case of an individual's infectious disease.
The German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) provides protection against discrimination based on disability. Not only people whose (severe) disability is officially recognized have disabilities in terms of the General Equal Treatment Act, but people are also deemed to have disabilities if "their physical functions, mental capacities or psychological health are highly likely to deviate for more than six months from the condition that is typical for the respective age" and if their "participation in the life of society is therefore restricted." Therefore, employees' chronic illnesses can lead to disabilities and dismissal of a chronically ill employee can constitute discrimination based on a disability.
Because the general protection against dismissal provided for under Sec. 1 of the Act on Protection Against Unfair Dismissal (Kündigungsschutzgesetz, KSchG) does not apply until the employment has existed for six months (so-called "waiting period"), an employer does not have to substantiate or justify its decision to terminate during this period of time. A dismissal during this period may, however, be invalid because it violates the General Equal Treatment Act if it discriminates against the employee, for example, because of a disability. The technician, therefore, claimed, that he had a disability and that the notice was thus invalid because it constituted discrimination against him because of his disability.