§ 2 paragraph 4 AGG, which solely for the dismissal Provisions for general and special protection against dismissal is valid, according to a compensation claim. § 15 para 2 of AGG of contract. workers must nevertheless not initially against the discriminatory termination claim before they can make a compensation claim under the AGG.
The facts:
The applicant, a German national who speaks with a Russian accent was an employee of the defendant carrier since 20.01.2009 as a clerk.
Even during the six month trial period the applicant, there was a conversation with the new manager of the defendant. This suggested that the customer the defendant because of the Russian accent would scare the applicant. The defendant can not afford to staff to deal with stress. The clients would think, "What a shit-load, in which only foreigners to be employed." Since that conversation
could no longer service the applicant on the phone. Two weeks after the interview, the defendant, the probation termination of employment with the applicant said.
By this action, the applicant asked for compensation under the AGG. They had been discriminated against because of their ethnic origin. The employment tribunal said its compensation in the amount of three gross monthly salaries. It against that of the defendant's appeal was unsuccessful. The LAG was, however, because of fundamental importance to the matter an appeal to the BAG.
The reasons: The applicant can
by the defendant for compensation according to § 15 paragraph 2 of AGG in the amount three times their monthly earnings call. The termination is not because of lack of language skills of the applicant will be, but for her - because of the accent audible - the source from the Russian-speaking world. This constitutes an impermissible discrimination based on ethnic origin.
The compensation is not in sec. § 2 para 4 AGG excluded. How is this exclusive arrangement is understood, is indeed controversial. Wording and purpose of the provision say but why only to review the effectiveness of a termination should be excluded under the AGG, but not the assertion of claims for breach of personal rights. Therefore, in cases of discriminatory dismissal without bringing an action for dismissal, compensation in accordance with § 15 para 2 AGG required.
The Labour Court has fixed the amount of compensation is also right to three months' salary. be taken into account was that the comments of the manager offensive character had, and the applicant was thereby reduced in a special way. Therefore, compensation was fixed, which was a sensible response to this discrimination. Because of the severity of discrimination against a compensation amounting to three months earnings was also not prevent the applicant does not challenge the trial period of one month notice could resist.
(LAG Bremen 29.06.2010, 1 Sat 29/10)
Note: To welcome
is that the LAG Bremen made it clear once again that the so-called "exclusivity arrangement" of the controversial and probably illegal europe § 2 para AGG 4 the assertion of claims does not preclude.
welcomed the "clear statement" of the court by which the discriminatory comments of the manager rightly be described as "insulting".
But why the applicant will either only 3 months' salary for pain claim did - then she may advise not good - or did, but granted the court by itself so little - then, in disregard of European law - is in each of the two alternatives angrily
because the EU policies that are implemented by the AGG require the Member States, it clearly for cases of discrimination "effective and dissuasive provide for penalties " - to that standard, the courts are bound
It would therefore in this case, an amount must be ejected, who does the defendant company really hurt -. from this requirement, only 3 months' salary can not be assumed - not understandable, therefore, remains why the LAG calls this yet even as a "sensible response".
is informed by the court of the dismissal to be void as declared unlawful, because that it does not matter whether the applicant was still in the probationary period and employment protection law for them was not provided the trial period no longer than 6 months and was the termination before which was:
terminations that violate legal prohibitions, namely gem. § 134 BGB void.
not be revealed, unfortunately, not whether the plaintiff in the case of job loss in addition to pain and suffering and its rightful claim to compensation for their material damage gem. § 15 para 1 AGG has argued:
If they should have actually lost their dArbeitsplatz result, this claim covers approximately the content of their result in the loss for at least 5 years, as statistically considered a labor contract in Germany on average lasts so long.
addition, the damage claim would of course all include other material costs of job loss, such as new application costs, interest, etc. MRP
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