No liability of the recruitment agent under the Equality of Treatment Act

Claims for compensation in cases of violation of the General Equality of Treatment Act (AGG) under Section 15 Subsection 2 must be made against the employer. If a recruitment agent is involved in the advertisement of job vacancies, he shall not be liable for any such claims.

In September 2011, the claimant applied for a position as recruitment agent advertised in the Internet. The job advertisement was aimed at “career entrants” with one to two years of professional experience. The application was to be addressed to UPN GmbH. Reference was made at the end of the job advertisement to a UP GmbH as regards possible “contact information for applicants”.

The claimant applied via the e-mail address stated, he addressed the letter of application to UP GmbH. He received a rejection by e-mail; the sender of the e-mail was UPN GmbH. The claimant then unsuccessfully requested compensation from UPN GmbH, whereupon the latter provided detailed reasons for the rejection of the application. Finally, the claimant brought legal action against UPN GmbH for payment of appropriate compensation. During the litigation, UPN GmbH pleaded that not it but UP GmbH had advertised the position.

As with the previous instances, the legal action before the Federal Labour Court was unsuccessful. In the opinion of the Senate, the claim for compensation made against UPN GmbH by the claimant is not justified. This is because UPN GmbH was merely a recruitment agent. Had the claimant been employed, not it but rather UP GmbH would have become the employer. However, according to the Federal Labour Court, the claim for compensation under Section 15 Subsection 2 AGG could only be asserted against the “employer”.

Claim for damages only against employer

Even if Section 15 Subsection 2 AGG (other than Section 15 Subsection 1 AGG) does not explicitly name the employer as the party against whom claims must be asserted, the judgment of the Federal Labour Court now constitutes a decision by the highest court that the claim for compensation under Section 15 Subsection 2 AGG is exclusively against the employer. As a recruitment agent is therefore not liable himself, the only option open to the unsuccessful applicant is to claim against the employer on the basis of discrimination when filling the position.

Entitlement to information against recruitment agent

Case law recognizes that the employer can also be accused of discrimination against an applicant if the discrimination is committed by third parties. The difficulty for an applicant, who is potentially the victim of discrimination, then lies in identifying the employer behind the recruitment agent. For this reason, it appears advisable to grant the applicant a right of information against the recruitment agent as regards the employer behind an anonymous job advertisement, at least if he has set out the probability of a compensation claim in sufficient manner, or even if only tangible indications exist for the serious possibility of a compensation claim. This is because the applicant is dependent on the identity of the employer in order to be able to assert a claim for compensation under Section 15 Subsection 2 AGG in the first place. In such cases, the preclusive period is also not likely to start until the applicant first gains knowledge of the potential employer without any delay for which he is responsible.

Conclusion

Claims for compensation based on non-material damage as per Section 15 Subsection 2 AGG must be made exclusively against the (potential) employer. If a recruitment agent is involved in the advertisement of job vacancies, he shall not be liable for claims under Section 15 Subsection 2 AGG. The Senate was not called on to consider whether other claims can result against the recruitment agent. As a result, this decision also shows that utmost caution is called for when recruiting personnel. Notwithstanding the fact that, when formulating job advertisements, any reference that could be considered discriminatory must be avoided, the employer should always check thoroughly whether and – if so – which personnel agent he entrusts with the recruitment.