Labour law

The UN Convention on the Rights of Persons with Disabilities (CRPD) is the first contract of norms which puts human rights of disabled persons in concrete terms on a universal level.

Dismissal due to HIV infection

BAG, judgment of 19.12.2013 - 6 AZR 190/12 and Higher Labour Court of Berlin-Brandenburg, settlement dated 06.06.2014 - 6 Sa 370/14, Berlin Labour Court, judgment of 21.07.2011 - 17 Ca 1102/11

The defendant hired the plaintiff as a chemical-technical assistant. The company produces medicine for cancer treatment that is injected intravenously. The applicant was to be employed in the so-called cleanroom area. The employment was temporarily limited, considering the first six months as probationary period, within which the employment relationship could be terminated with a notice period of two weeks.

During the recruitment examination of the plaintiff an HIV infection was ascertained. The applicant is asymptomatic. He has a degree of disability of 10. The company's doctor expressed concerns regarding the employment of the plaintiff in the clean room area.

The defendant terminated the employment relationship.

The applicant claimed that the impugned notice of dismissal discriminates against him since his HIV infection was the sole reason for termination. An asymptomatic HIV infection should be protected from discrimination. Therefore, he was entitled to compensation. Taking into account the specific manufacturing process and the specific activity of the plaintiff the HI virus would not be transmitted by the plaintiff to the medication manufactured by the defendant under any circumstances, not even through cuts or needlestick injuries.

It was questionable whether an HIV-infected person could claim protection from discrimination on grounds of disability. A disability by the meaning of § 1 AGG occurs when the physical function, mental ability or mental health of a person is limited in the long term and therefore their participation in society, including participation in professional life, can be substantially impaired.

The Berlin Labour Court ruled that an HIV infection is not a disability falling under the scope of the AGG. During the appeal, the State Labour Court Berlin-Brandenburg considered a possible unequal treatment as lawful since the employer had a legitimate interest in excluding any impairment of drug production by infected workers (see here). In the third instance, the Federal Labour Court then referred the matter back to the decision of the Regional Labour Court of Berlin-Brandenburg. There, the parties settled the dispute by a comparison.

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