According to such prohibition, the employer may not discriminate against an employee in an agreement or a measure if the employee exercises hir or her rights in a permissible way (Art. 612a BGB (German Civil Code).
The decision was based on the following case:
The plaintiff had worked as medical assistant for the defendant, who operates a hospital, since February 1, 2021. The plaintiff had been assigned to various wards in patient care. She refused to undergo vaccination against SARS-CoV-2 and did not accept her employer’s corresponding offers to get vaccinated.
The defendant terminated the employment with due notice effective August 31, 2021. The plaintiff filed a lawsuit against such termination, asserting in particular that the termination violated the prohibition of victimization pursuant to Art. 612a BGB. Before the obligation to present proof of vaccination or proof of recovery for hospital staff (cf. Art. 20a IfSG (German Infection Protection Act)) came into effect on March 15, 2022, she had not been obliged to be vaccinated.
According to the BAG, the refusal to get vaccinated was not the reason for dismissal
The Rhineland-Palatinate Regional Labor Court had dismissed the complaint. The plaintiff’s appeal before the BAG was not successful (BAG, decision of March 30, 2023 – 2 AZR 309/22; BAG press release of March 30, 2023). The court of appeal correctly assumed that the dismissal did not violate the prohibition of victimization pursuant to Art. 612a BGB. The causality required for such violation between the employee’s exercise of rights and the discriminating action by the employer was missing. The essential motive for the employment’s termination was not the plaintiff’s refusal to get vaccinated against SARS-CoV-2, but the intention to protect the hospital’s patients and the remaining workforce from getting infected by non-vaccinated medical staff. In this context, it was legally irrelevant that the employment had been terminated before the statutory compulsory vaccination came into effect. Even from a constitutional perspective, there were no concerns regarding the termination’s validity.
In times of and in connection with Covid-19, dismissals may be justified. For example, terminations of employment for operational reasons due to business closures are/were possible. However, this needs to be thoroughly examined. Such terminations are subject to the ordinary provisions under the German Employment Protection Act and not to any extraordinary termination right.
Even if there is currently no obligation to wear masks, to self-isolate and to get vaccinated, the question of legally permitted measures within the course of the Covid-19 pandemic, such as compulsory vaccinations, has not become obsolete yet.
Please feel free to contact us if you have any questions in this context or in connection with any other labor law related issues.