Employment Update Germany November 2006

22 November 2006

Eleni Konstantinou

New legislation

The AGG (Allgemeines Gleichstellungsgesetz), which came into force on 14 August 2006, is an extremely important piece of legislation as it implements the following EU-Directives:

  1. Anti racism Directive 2000/43/EG of the European Council on 29 June 2000;
  2. Framework Directive 2000/78/EG of the European Council on 27 November 2000;
  3. Gender Directive 2002/73/EG of the European Parliament and the European Council on 23 September 2002;
  4. Unisex Directive 2002/73/EG of the European Council on 13 December 2004.

Some of the key changes implemented are discussed below:

The main goal of the legislation is to avoid or to eliminate discrimination in connection with ethnic background, race, sex, religion, view of life, handicap, age or sexual identity.

Discriminatory practices are only allowed where they fall within the list of justifications as set out in paragraphs 8 to 10, and 20 of the AGG. This also applies to job advertisements.

Employers are obliged to protect employees from discrimination. This duty can be fulfilled by bringing the issue to the fore, making employees aware that discrimination is not tolerated in the workplace or sending employees on training courses to tackle the issue.

Where an employee or a third party discriminates another employee, the employer is obliged to take action against the discriminating employee or third party. Action that can be taken includes transferring or relocating the employee, or in the most extreme of cases, terminating the perpetrator’s contract of employment.

An employee will have the following rights where he or she has been subjected to discrimination:

  • the right to complain about the perpetrator of the discriminating act;

  • the right to stop working without losing entitlement to remuneration;

  • a right to claim damages against an employer that has failed to discharge the legal duties owed to employees. Such a claim must be brought within three months of the act of discrimination unless a collective bargaining contract provides for a longer period.

The German law deviates from the guidelines of the EU Directive in the following ways:

  1. The German law applies in discrimination in respect of age, disability, religion and sexual orientation;
  2. The Works Council has the right to make a claim where an employer has neglected the legal duties which arise under the AGG;
  3. The AGG applies to individuals who are not defined as employees but are regarded, under German law, as being similar to employees and to former employees;
  4. The employer can be liable for failures of third parties.