Employer in the public sector has no obligation to extend a job invitation to a senior disabled job applicant. - Employers in the public sector are not required to extend job invitations to senior applicants with significant disabilities.
In a recent ruling, the Labour Court of Appeals in Hamm and the Federal Labour Court dismissed a compensation claim made by a 67-year-old applicant who alleged unlawful discrimination due to his disability and age. The applicant, who was born in 1956, had applied for a one-year fixed-term position related to an Adult Education Centre in the municipality of Erfurt, located in North Rhine-Westphalia.
The position in question was advertised in the year 2023, and a total of 24 individuals, including the applicant, applied. A woman born in 1976 secured the position, marking the rejection of the applicant's application.
The applicant argued that he was unlawfully disadvantaged due to his disability and age, as he was not invited to an interview despite his professional suitability. However, the court did not address this argument, and instead, they allowed the dismissal, deeming the promotion of younger people's access to positions and the distribution of employment more fairly between generations as a legitimate goal.
The collective bargaining agreement in question terminates employment relationships when employees reach the statutory retirement age, which in this case, appeared to have been the deciding factor in the applicant's rejection.
German employment law strictly prohibits age discrimination, including in public employment. Key legal frameworks addressing this issue include the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG), which protects against discrimination based on age, disability, and other grounds throughout employment processes. Under the AGG, employers cannot exclude candidates based solely on age unless there is an objectively justified reason.
Excluding a disabled applicant over retirement age without objective justification would likely be considered unlawful discrimination, as public employers in Germany are subject to strong obligations to prevent discrimination and promote inclusion, especially for persons with disabilities.
Remedies for applicants facing unlawful age discrimination include complaints to anti-discrimination offices, claims in labor courts for compensation, and possibly injunctive relief requiring reconsideration of the hiring decision.
In this case, however, the court ruled that the municipality was not required to invite the applicant to an interview because he exceeded the regular retirement age. The applicant's argument that he was unlawfully disadvantaged due to his disability was not addressed in the court rulings.
The ruling highlights the importance of employers evaluating professional suitability and not making hiring decisions based solely on age or disability, even if a mandatory retirement age is in place. Younger and suitable applicants should be given the opportunity to gain professional experience and potentially advance later on.
The community can advocate for workplace wellness and health-and-wellness initiatives, ensuring that aid for the construction of new buildings, such as Adult Education Centres, is inclusive and promotes equal opportunities for all ages, including the older population. On the other hand, science plays a crucial role in understanding age-related discrimination and finding solutions to combat this issue, as the law strives to prevent unlawful discrimination based on age, disability, and other grounds throughout employment processes.
