The failure to appoint such an officer may be an indication within the meaning of Section 22 AGG of a connection between the severe disability and discrimination if the measure affects the specific interests of severely disabled persons.
In the proceedings, the severely disabled plaintiff claimed compensation from her employer for various violations in accordance with Section 15 (2) AGG. The defendant’s company has a representative for severely disabled persons, but no inclusion officer. Based on this and other reasons, the plaintiff concluded that she was being discriminated against because of her severe disability. The defendant disagreed.
The appointment of an inclusion officer is intended to ensure that the employer fulfils its obligations towards severely disabled persons, and the inclusion officer is responsible for ensuring that severely disabled persons, works councils, the integration office and other government agencies and authorities have a competent contact person on the employer’s side with regard to their concerns and tasks.
The failure to appoint an inclusion officer in accordance with Section 181 of SGB IX does not in itself constitute evidence that discrimination has occurred specifically on the grounds of severe disability. It is necessary that the discriminatory measure affects the specific interests of severely disabled persons.
The Federal Labour Court was not yet able to assess this in the specific case, which concerned an ongoing employment relationship.
However, even in the application process, the mere failure to appoint an integration officer will not constitute sufficient evidence of discrimination if a disabled applicant is rejected. The integration officer will also have to ensure that the employer complies with its obligation under Section 164(1) of SGB IX, i.e. consults the Employment Agency when advertising job vacancies. In this case, however, failure to consult the Employment Agency could constitute evidence of discrimination.
A severely disabled applicant would also have to provide further evidence in the event of failure to appoint an inclusion officer in order for discrimination to be assumed in accordance with Section 22 AGG. A mere assertion without evidence is not sufficient (see LAG Berlin-Brandenburg, 15 Sa 289/10).
Conclusion
If no inclusion officer is appointed, this does not lead to compensation in accordance with Section 15 (2) AGG without further evidence.
Summary of the key facts
- Employers are required to appoint an inclusion officer in accordance with Section 181 of SGB IX.
- Failure to appoint such an officer does not in itself give rise to a claim for compensation pursuant to Section 15(2) AGG.
- If, in addition to the failure to appoint an inclusion officer, the employer takes further measures affecting the severely disabled person, this is to be regarded as prima facie evidence of discrimination pursuant to Section 22 AGG.
