The dismissal of an employee with a severe disability during the waiting period was heard at the Federal Labor Court (BAG). The result is clear from the recently published judgment: Although the special protection against dismissal had not yet come into effect and the approval of the integration office was not necessary, the termination was still ineffective. The reason: In the case of such terminations, deadlines must be adhered to and the representatives of the severely disabled (SBV) – if available – must be properly heard. In the most recent case, this was not done correctly. An ambiguous form and half a day past the deadline cost the employer the effectiveness of the termination. The case was previously before the Labor Court and the Düsseldorf Regional Labor Court.
The case: A severely disabled employee sues against termination of the waiting period
The plaintiff is an employee recognized as severely disabled. He was employed in the office and field service of a city, where he carried out “traffic checks throughout the city’s public traffic areas,” as the judgment states. After the employee showed up late for work on three days in October 2023, the supervisor criticized the employee in a meeting and wrote an internal memo recommending termination. The employee was later personally informed of his intention to resign.
The necessary steps for a proper dismissal were generally taken: the staff council was first consulted and later the existing representatives for severely disabled people were informed about the intended dismissal. The plan ultimately failed because the deadline for hearing the SBV had not yet passed when the employee received the notice of termination. The hearing period expired at the end of December 14, 2023, i.e. only after midnight. However, the termination took place on December 14, 2023 at 2:30 p.m. “The state labor court (…) did not take into account that the termination was given before the one-week period for comment had expired,” it says in the BAG ruling.
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Die Waiting time is the period until protection against dismissal occurs. This happens after the first six months of the employment relationship – regardless of the length of a probationary period. People with severe disabilities cannot rely on their special protection against dismissal during this time. However, if you suspect or know that you have been terminated due to your disability, you can still take action against the termination on the basis of the General Principle of Equal Treatment (AGG).
Representation of severely disabled people: Acknowledgment is not a statement
In addition, according to the BAG, there was no clear statement from the SBV until then. The form that the employer submitted to the SBV contained five options to tick: “Agree”, “Aware”, “No objections”, “No concerns” and “See statement”. The SBV had ticked “knowledge”.
In the BAG’s ruling, this was ruled out as a clear statement that could end the hearing process: “Since there is a lack of solid evidence that the representative for the severely disabled no longer wanted to comment on the intention to terminate, the defendant should have asked in order to achieve appropriate clarification.”
SGB IX: Special protection against dismissal for severely disabled employees
In addition to the general protection against dismissal, employees with severe disabilities are also protected by Section 168 SGB IX. It is stipulated here that a special procedure is required for termination. This does not exclude termination. However, an employer must first obtain the approval of the integration office. This is intended to check and ensure that the termination should not be based on the disability and is therefore discriminatory. If the employer does not obtain this, the termination is ineffective.
The special protection against dismissal applies to all employers regardless of the size of the company. If there is a works or staff council or a representative for the severely disabled, the integration office must also obtain their opinions.
Special features when hearing the representatives of the severely disabled
If an employer intends to dismiss an employee with a severe disability, he must properly consult the SBA. This is the case if they have been sufficiently informed and the SBV has had the opportunity to make a statement. The law has a gap at this point when it comes to the hearing period for the SBV’s statement. However, the BAG ruling shows that the deadline is regulated by Section 102 (2) BetrVG. It results from the consultation period for works councils and, according to the BAG, also applies to the public service even if shorter periods actually apply to the staff council.
Accordingly, the SBV must report any concerns regarding the intended ordinary termination within one week at the latest. In the event of an extraordinary termination, a notice period of three days applies. Termination can be given before the deadline has expired if the SBV has agreed to the termination in a clear and conclusive statement. However, as the current case shows, this is precisely where misunderstandings and process errors can occur.
Termination of waiting time for severely disabled people
Even if you have a proven severe disability, the special protection rules only come into effect after the waiting period. Therefore, a termination within the first six months only needs to be reported to the Integration Office. In this case, consent is not required. However, the representative body for severely disabled people must still be properly and completely informed and consulted, if there is one.
Tonia Schöler is a volunteer at Human Resources.
