Written By: Thomas Schwab – German Attorney at Law
WINHELLER Attorneys at Law
Frankfurt am Main, Germany
The German Federal Court of Justice has applied the General Equal Treatment Act to managers of a limited liability company (GmbH) for the first time with the judgment of April 23, 2012.
The General Equal Treatment Act prohibits discriminating against employees within the meaning of the law (among others, employees and trainees), for example, due to their gender or their age. Section 6(3) provides that the prohibition of discrimination also applies to managers, insofar as it is a question of access to gainful employment and their professional advancement. The Federal Court of Justice has now decided that the decision of not wanting to continue to employ a manager after the expiration of his appointment can be seen as concerning access to the office. If discrimination exists within the meaning of the law, the manager has grounds for a claim to damages and compensation.
NOTE: Public statements of the supervisory board of a limited liability company allowed drawing the conclusion that the 62 year-old manager should no longer continue to be employed for reasons of age. The Federal Court of Justice adjudged these statements to be an indication of discrimination. It was now up to the limited liability company to present evidence to the contrary, which, however, it failed to do.
Federal Court of Justice, Judgment of April 23, 2012, Case II ZR 163/10.