Employment relationships are a fairly complex matter — beyond the rights and duties set out in law, they involve countless nuances that are often established or clarified only through court rulings. For this reason, an experienced lawyer always strives not only to keep pace with constantly changing legislation, but also to stay abreast of current case law, which can likewise be cited when arguing a client's legal position. It's also important to weigh the arguments of both sides of a dispute, since a lawyer may, depending on the case, represent either an employee's interests or an employer's. In today's article, we'd like to look at two recent cases from practice.
A Fake Résumé and a Discrimination Claim
From Our Firm's Practice
Legal representation is not mandatory before the labor court of first instance, but having a lawyer present often helps the parties reach a favorable settlement more quickly.
A small German manufacturing company with around 20 employees became a client of one of our colleagues' firms. The company's director explained that, needing a qualified engineer urgently, the company had posted a job listing online seeking qualified specialists with knowledge in the fields named in the ad and experience working with the corresponding equipment.
Alexander (name changed), a 49-year-old engineer with the required qualifications, sent in his résumé but received no reply within a week. He then decided to run an experiment: he submitted a fake résumé to the company under the name of a supposedly 24-year-old engineer, who likewise had the corresponding education and some experience in the fields the company had named. In the fake résumé, Alexander used a mix of real and fictitious companies as his invented engineer's prior employers. A few days later, the company responded to the fake résumé by inviting the fictitious engineer to an interview — while sending Alexander a standard rejection, explaining that the company had other candidates who better matched the requirements stated in the ad.
Alexander was furious and called the company, demanding to know exactly why he hadn't been invited to interview. A company representative explained the requirements in more detail, pointing out that some of the practical skills the job required had been acquired by Alexander more than 7 years earlier and had not been used since. The explanation still failed to satisfy the would-be engineer, however, and he announced that he intended to prove he had been discriminated against on the basis of his age.
Some time later, the company did in fact receive a formal claim from a representative acting for Alexander, explaining in detail that the résumé of the supposedly younger candidate had been fictitious, and had been submitted by Alexander to test whether candidates with virtually identical skills, but from different age groups, were treated equally. Alexander maintained that he held the qualifications and practical experience the employer had asked for, and that the fact he had been rejected while the fictitious younger candidate was invited to interview was evidence of age discrimination. Citing § 15(1) and (2) of the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG), Alexander demanded 10,000 euros in compensation for the harm caused by the employer's discriminatory conduct. His representative indicated that, should the company fail to pay the amount within the stated deadline, he intended to file a claim with the court.
After reviewing the claim our client had received, the lawyer explained that it should be possible in this case to show that the company had acted within the bounds of the law when selecting candidates. To do so, he asked the client to give him the text of the job listing, and to lay out, in as much detail as possible, the company's requirements and the reasoning it had used to compare the candidates for the engineering post.
Once he had the necessary information, the lawyer drafted a formal letter setting out our client's legal position. In particular, he pointed out that, despite the apparent similarity between Alexander's qualifications and those of his fictitious rival, the fake résumé stated that the candidate was currently working in the relevant field, whereas Alexander had acquired his practical knowledge more than 7 years earlier and had not used it since. The fake résumé also listed the specific specialization the employer required, while the claimant's own experience in that field was considerably more general. These facts justified the company's choice, meaning the accusation of discrimination was unfounded.
What's more, under current case law, the key criteria for establishing discrimination are: the maximum possible comparability of the individuals concerned, the maximum possible comparability of the circumstances in which the applications were submitted, and the absence of any other relevant factors. In this case, the candidates differed in characteristics that mattered to the employer, so there could be no serious question of comparability — either of the individuals or of the situations — which likewise supported the legitimacy of the company's selection. In closing, the lawyer noted that while such "tests" are permissible in principle, their lawfulness is subject to scrutiny — meaning that, should Alexander take the matter to court, he would have to prove that his experiment with the fictitious candidate had itself been conducted within the bounds of the law.
The lawyer's arguments, backed by references to existing case law, convinced Alexander that even if he filed a claim, the court would most likely side with the company — and the matter was dropped.
A Christmas Bonus at the Employer's Discretion?
Bonuses and other supplementary payments are a very popular way of motivating employees, especially at larger companies. There is no statutory requirement to pay a bonus, meaning such payments are, as a general rule, entirely at the employer's discretion. There is, however, an exception to this rule too.
Anna (name changed), a manager at a German retail company, came to the firm for advice. Anna had worked at the company for more than four years, and every year management sought to boost staff motivation with a substantial Christmas bonus paid to all employees at year's end. At the end of her fourth year with the company, however, Anna was surprised to find she hadn't received hers. This upset her, of course, but she assumed it was down to the company's finances taking a downturn, and within a couple of days she had put it out of her mind. But once she was back in the office after the holidays, Anna overheard a colleague mention how handy the Christmas bonus had been for some home renovations. Talking to other coworkers, she realized they, too, had received theirs. Assuming some kind of mistake had been made, she raised the matter with management — only for the company's director to tell her that the decision had simply been made not to pay her a bonus this year. He declined to explain the decision any further.
For this reason, Anna decided to consult an experienced lawyer to find out whether the employer really was within its rights. She suspected that management's behavior had something to do with the fact that she was pregnant and planned to go on maternity leave in a few months.
The lawyer explained to Anna that, as a general rule, compensation matters are governed by the principle of freedom of contract, rather than the principle of equal treatment that otherwise applies to employment relationships. That principle does apply, however, where an employer makes payments to staff under its own general rules, applicable to all employees. Exceptions are possible only where there are clear grounds for treating employees differently.
Since there was no obvious reason why the employer had refused to pay Anna's bonus, the lawyer proposed sending the company's management a formal demand for the corresponding amount. Anna, determined to see justice done, agreed to the course of action he proposed.
In the demand letter, the lawyer pointed out that, under the employer's own established practice, the Christmas bonus was paid annually and simultaneously to all employees. The bonus was meant as a reward for hard work and as an incentive for the year ahead. Since neither party intended to end the employment relationship, and since our client had fully carried out her duties, denying Anna her Christmas bonus amounted to discrimination. The lawyer therefore demanded that the corresponding amount be transferred to our client's account.
A few days later, however, our firm received a reply from Anna's employer explaining that the decision not to pay her bonus was tied to her having been on sick leave for a total of six weeks, due to a difficult pregnancy. The company's decision, it argued, had therefore been fair and had not discriminated against Anna in any way.
The lawyer, in turn, informed Anna's employer that, under current case law, a prolonged period of incapacity cannot in itself justify denying an employee a special payment the employer has otherwise established, since the overall volume of work performed remains the same regardless of whether the six weeks of sick leave were taken continuously or in six separate one-week spells. The employee therefore remained entitled to the corresponding reward. The lawyer accordingly renewed his demand that the equivalent Christmas bonus be paid to Anna.
The employer accepted the lawyer's arguments, and Anna was paid her full bonus.
These examples show how important it is to have a qualified lawyer defending your interests — one who can uphold your legal position using the arguments that matter most in your particular situation.
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