Dismissals violate the AGG and are ineffective if they were declared on account of race, ethnicity, gender, religion or belief, disability, age or sexual identity.

This may be particularly relevant if the dismissal occurred during the probationary period or in small businesses (ten or fewer employees). Since, in these cases, the general protection against dismissal within the Act on the Protection against Dismissal (KSchG) does not apply. You can only take legal action against a dismissal if it violates the AGG.

The dismissal protection suit: How to get the dismissal to be declared ineffective

To get a dismissal to be declared ineffective, you must file a dismissal protection suit at your local labour court. It is important that this suit is filed within three weeks of receipt of the written letter of dismissal. Should this period elapse, then the dismissal is deemed to be ineffective and can no longer be challenged.

The dismissal protection suit may also contain claims asserted under the AGG: If the employer discriminated against you through this dismissal, you are also entitled to compensation and damages.

How to sue for compensation and damages in case of discrimination

Even after the three-week-period to file a dismissal protection suit has elapsed, you can still sue for compensation and damages on account of discrimination. First, these claims must be asserted in writing to the employer within two months of becoming aware of the discrimination – usually upon receipt of the letter of dismissal. To help assert your claims, you can use our formulation template “Redress and out-of-court assertion of claims for damages and compensation vis-a-vis the employer under section 15 (4) of the AGG”.

Subsequently, you have another three months to file a suit with the local labour court.

What you need to prove in court

As a rule, you should document all facts that indicate discrimination has taken place in as much detail as possible. Since you must collect so-called circumstantial evidence to sue against a discriminatory dismissal in court. These are indications that you were dismissed on account of one of the protected characteristics. If such evidence can be furnished, then the employer must demonstrate in court that discrimination did not in fact take place.

Circumstantial evidence of discrimination might be:

• Disparaging remarks from a superior relating to one or several protected characteristics, in other words your age, background, religion, gender, disability or sexuality.
• A close temporal connection between the termination and the point in time when you informed the employer of the characteristic, e.g. your pregnancy or sexual identity.

Note: What will suffice as circumstantial evidence of discrimination in the individual case can only be decided by the competent court.

What you can attain in court

Should you sue against discrimination at the workplace and win the case, you will receive a financial settlement (damages and compensation).

Do I need a lawyer if I wish to sue?

Lawyers specialising in labour law can help gauge a lawsuit’s likelihood of success. To pay for their consultation, people with low income and little in savings can apply for a so-called financial aid permit at the competent Local Court. You can find more information in the Federal Ministry of Justice’s flier on “Beratungshilfe und Prozesskostenhilfe” (Legal advice and aid).

Even without a lawyer, it is relatively simple to submit a complaint concerning discrimination at the workplace. Here, the legal application office (Rechtsantragstelle) at your local labour court will support you free of charge. Additionally, your cost risk is low, since you will not need to pay the legal fees of the opposing party should you lose the case.