Federal Labor Court, November 24, 2011, Case No.: 2 AZR 429/10
In principle, severely disabled individuals and those with equivalent status in Germany enjoy special protection against dismissal.
While termination is possible for severely disabled employees, it is subject to more stringent conditions for the employer.
The relevant law governing the dismissal of severely disabled employees is the Ninth Book of the Social Code – Rehabilitation and Participation of Disabled Persons (SGB IX).
According to § 85 SGB IX, the termination of a severely disabled employee’s employment is invalid if it occurs without the prior consent of the Integration Office.
This also applies to disabled individuals with a degree of disability (GdB) below 50 but at least 30, who are classified as equivalent to a severely disabled person by the Employment Agency.
If the Integration Office grants consent to the termination at the employer’s request, the employer may, pursuant to § 88 (3) SGB IX, declare the termination only within one month after the delivery of the Integration Office’s consent.
In the case mentioned above, the Federal Labor Court had to decide on the intersection of the consent requirement under § 85 SGB IX with the requirement of a permissibility declaration according to § 18 (1) Sentence 2 of the Federal Parental Leave Act (BErzGG) (now BEEG).
Section 18 (1) Sentence 2 BErzGG (now BEEG) also stipulates a requirement for official consent to a dismissal, namely when an employee is on parental leave:
“The employer may not terminate the employment relationship from the time parental leave is requested, at the earliest eight weeks before the start of parental leave, and during parental leave. In exceptional cases, termination may be declared permissible. The declaration of permissibility is made by the highest state authority responsible for occupational health and safety or by the body it designates. The federal government may issue general administrative regulations for the implementation of sentence 2 with the consent of the Bundesrat.”
Introduction: The Case of the Severely Disabled Plaintiff
The plaintiff, born in 1971 and employed by the defendant employer since 2001, has been recognized as a severely disabled person with a degree of disability of 70 due to a motorcycle accident in 1992. In 2004 and 2005, disputes arose between the parties concerning the plaintiff’s work performance, as the employer accused the plaintiff of numerous shortcomings. The plaintiff repeatedly refused to comply with requests for medical examinations, which ultimately led to tensions and the threat of dismissal.
Parental Leave and Renewed Demand for Medical Examination
From July 1, 2005, to May 24, 2008, the plaintiff was on parental leave, during which he agreed with the employer to reduce his working hours to 30 hours per week. Despite the ongoing parental leave, the employer again demanded a medical examination in 2006 to assess the plaintiff’s fitness for work. The plaintiff once again refused the examination, leading the employer to decide to terminate the employment relationship.
Termination Proceedings and Approval by Authorities
The employer applied to the Integration Office and the Regional Council for approval of an extraordinary, alternatively ordinary, termination. The works council approved the precautionary ordinary termination. Subsequently, both the Integration Office and the Regional Council granted their consent to the termination, and the employer issued the termination.
The plaintiff then filed a wrongful termination claim, arguing that the immediate termination was invalid and that the ordinary termination was unjustified. He claimed that the works council had not been properly involved and that the termination had not been declared within the one-month period required by § 88 (3) SGB IX after the Integration Office’s consent.
Decisions of the Labor Courts
The labor court ruled in favor of the plaintiff’s wrongful termination claim but dissolved the employment relationship at the employer’s request, awarding the plaintiff severance pay of €10,440 gross. It also awarded him back wages of €7,700.76 gross. The regional labor court later increased the severance pay to €11,000 and ordered the employer to make additional payments of €271.17. The claim for an accounting statement was dismissed.
Decision of the Federal Labor Court
The Federal Labor Court ruled that the termination of a severely disabled individual is invalid under §§ 85, 88 (3) SGB IX in conjunction with § 134 BGB if the employer fails to declare the termination within one month of the Integration Office’s consent. However, it emphasized that in cases where termination also requires additional official approval, such as under § 18 (1) BErzGG, both parties’ interests must be appropriately balanced. If the declaration of permissibility is received after the one-month period, the employer can still issue a valid termination, provided it is done immediately after receiving the declaration.
The court clarified that the employer could only request the dissolution of the employment relationship if the invalidity of the termination was solely due to its social unacceptability and not for other reasons under § 13 (3) KSchG. This ruling clarified the legal situation in cases where multiple approvals are required for the dismissal of a severely disabled person.
Source: Federal Labor Court
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