Employing severely disabled persons
Employers need to consider numerous rights and obligations when employing severely disabled persons. Section 164 of the German Social Code Book IX (SGB IX) stipulates that severely disabled employees
- must not be discriminated against because of their disability (paragraph 2) and
- have different claims against the employer in order to be able to perform their duties (paragraph 4).
Above all, severely disabled employees enjoy special protection when it comes to terminating their employment relationship: The works council, the representative body for severely disabled employees and generally also the integration office have to be involved at an early stage if the company intends to dismiss a severely disabled employee. However, different rules apply to the probationary period.
Preventive measures when difficulties arise in the employment relationship
Yet mistakes can occur when dismissing severely disabled employees during the probationary period which then render the dismissal invalid.
For example, “prevention” pursuant to Section 167 (1) of the German Social Code Book IX (SGB IX) can become a legal stumbling block. This section states that employers must take preventive measures if difficulties arise in the employment relationship which jeopardize the continuation of the employment relationship. The representative body for severely disabled employees and the integration office should be involved in the matter as early as possible to address the difficulties.
Although preventive procedures are not a formal necessity for the dismissal to be effective, failure to carry out these procedures may render the dismissal invalid due to a violation of the prohibition of discrimination (Section 164 (2) SGB IX).
Difficulties during the probationary period led to dismissal
The case before the Cologne Labor Court concerned the dismissal of an employee classified as 80% severely disabled during his probationary period.
Already during the probationary period, the employer realized that the collaboration with the severely disabled employee was not going to succeed. As a consequence, the company terminated the employment relationship with due notice. The staff council, the representative body for severely disabled employees, and the equal opportunities officer had no objections.
However, the employee objected to the dismissal and took the company to court, arguing that the dismissal violated the prohibition of discrimination pursuant to Section 164 (2) of the German Social Code Book IX (SGB IX) and was therefore invalid.
Does no preventive measures constitute discrimination?
The Cologne Labor Court (ArbG) agreed with the employee’s argument. Failure to carry out preventive procedures during the probationary period constituted discrimination on the grounds of the man’s severe disability. Consequently, the dismissal was invalid as stipulated by Section 134 of the German Civil Code (BGB) in conjunction with Section 164 (2) sentence 1 of the German Social Code Book IX (SGB IX).
Section 164 (2) sentence 1 of the German Social Code Book IX (SGB IX) prohibits employers from discriminating against severely disabled employees because of their disability. Failure to take such preventive measures also represents discrimination in this sense. Precisely this procedure is intended to resolve specific difficulties in the employment relationship with severely disabled persons with the objective of continuing the employment relationship.
Yet, does this argument also apply to the probationary period or statutory waiting period? The Cologne Labor Court ruled that it does. This also applies during the probationary period if the standard is interpreted in line with European law.
As a result, the termination during the probationary period was invalid, as the employer was unable to refute the discrimination.
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Summary of the key facts:
- Employers may not discriminate against severely disabled employees because of their disability. The prohibition of discrimination set forth in Section 164 (2) of the German Social Code Book IX (SGB IX) applies.
- If difficulties arise with severely disabled employees which endanger the employment relationship, employers are advised to initiate preventive measures intended to “save” the employment relationship, in accordance with Section 167 of the German Social Code Book IX (SGB IX).
- If an employer fails to take preventative measures before dismissing a severely disabled employee, this may render the dismissal invalid on the grounds of discrimination pursuant to Section 164 (2) of the German Social Code Book IX (SGB IX). This even applies during the probationary period.
