Misunderstandings often arise in job advertisements. Recently, problems arose with the job description “young, dynamic team with petrol in their veins”. Whether the applicant has been discriminated against and whether one of the defendants must pay appropriate compensation is a matter for the LAG Mecklenburg-Vorpommern decided, see 17.10.2023 – 2 Sa 61/23.
facts
A petrol station tenant was looking for support for his team. He posted his job advertisement on an online platform. In the job description he describes the job as follows: “We are a young, dynamic team with petrol in our veins and are looking for reinforcements.” In fact, all of his employees were middle-aged to older. Three employees were over 60, one over 50 and four around 40. Only the temporary worker was only 19 years old.
In May 2022, a man of about 50 years of age applied for this job advertisement. The gas station tenant informed the applicant that he had not chosen him. Instead, the tenant had hired a 48-year-old man, first as a temporary worker and later for a working time of 30 hours.
The rejected 50-year-old man filed a complaint against the lessee. He was of the opinion that the term “young, dynamic team” represented age discrimination. The description “young” in this case would refer to the age of the team members sought. According to the plaintiff, the petrol station lessee had failed to fulfil his obligation to provide information in accordance with Art. 15 GDPR The applicant is therefore entitled to non-material damages for failure to provide information in the amount of 500 euros. In addition, 250 euros are to be paid for each month of delay. This would amount to a total of 1250 euros.
The labor court dismissed the lawsuit on the grounds that there was no age discrimination. In the appeal proceedings, the Mecklenburg-Western Pomerania Labor Court confirmed this decision.
The reasons
According to the court, the applicant is not entitled to compensation under the AGG or the GDPR.
The scope of application of the AGG is § 6 Abs. 1 S. 2 Alt. 2 AGG opened. Nevertheless, the petrol station lessee is obliged to comply with the applicant’s Section 15 paragraph 1 and paragraph 2 AGG not obliged to pay any reasonable compensation.
In this case, there is neither direct nor indirect discrimination within the meaning of Section 3 Paragraph 1 Sentence 1 and Paragraph 2 Sentence 1 AGG The job at the gas station was therefore not advertised in violation of the ban on discrimination on the grounds of age. There is no generally accepted definition of “young”. The exact age group referred to by this term depends on the individual’s perspective.
In addition, the application for payment of compensation under Art. 82 para. 1 GDPR unfounded. In the court’s opinion, the provision is to be interpreted in such a way that the mere violation of the provisions of this regulation is not sufficient to justify a claim for damages. Rather, damage must have occurred directly. In addition, there must be a causal link between the violation of the GDPR and the damage itself. No non-material damage was apparent from the applicant’s complaint.
Conclusion
The judgment of the LAG Mecklenburg-Vorpommern of October 17, 2023 – 2 Sa 61/23 is clear. The job advertisement “We are a young, dynamic team with petrol in our veins” does not constitute direct age discrimination. It is therefore not suitable to justify the presumption in the sense of § 22 AGG Please feel free to visit us at the Website and read our full article.
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