Germany: Federal Labour Court: participation of the representative body for disabled employees - conflict of interests

When deciding on the application of severely disabled people, according to a ruling of the Federal Labour Court, the representative body for disabled employees is even to participate, if the trusted person of the disabled person is also one of the applicants.

The parties are in dispute over compensation under the General Equal Treatment Act (AGG), because the plaintiff, as a severely disabled person, is of the opinion that he was discriminated when the company decided on his application.

Both the representative of the disabled employees and his substitute who is the plaintiff, applied for two vacancies at the defendant party, a casino. The defendant informed the representative that it will not involve him or the plaintiff in the hiring decision due to a conflict of interests existing in his view.

The company eventually decided on two other candidates. Within the scope of the selection decision, the plaintiff considers himself discriminated as a severely disabled person. The lack of participation of the representative body for disabled employees points to such discrimination.

The lower courts have dismissed the lawsuit. The revision of the plaintiff succeeded before the 8th Senate of the Federal Labour Court. When deciding on the plaintiff’s application, the representative body for disabled employees should have been involved according to article 81 Social Security Book No. 9 (SGB IX). This does not change even in case the representative of the disabled employees and his substitute apply for one of the vacancies. A potential conflict of interests between the applicants could have been avoided by the plaintiff himself by refusing the involvement of the representative of the disabled employees as his direct competitor regarding the vacancy in question. However, it was not the employer’s right to refrain from the mandatory participation of the disabled employees’ representative.

The Senate has remitted the case for a new hearing and decision to the next lower labour court. This will have to clarify whether the breach of obligations for the promotion of severely disabled persons according to the social security code indicates a discrimination of the plaintiff because of his disability and if possibly the defendant is able to justify its approach so that a compensation claim of the plaintiff according to the General Treatment Act is excluded.