Protection against dismissal for severely disabled employees

In addition to the general protection against dismissal provided by the Dismissal Protection Act, there is also special protection against dismissal for certain groups of people and offices. In practice, the Special protection against dismissal for severely disabled employeesEmployers may only dismiss severely disabled people under certain conditions.

In this article you will learn directly from our Specialist lawyer for labor law,

• under what conditions the special protection against dismissal for severely disabled people applies,
• what the special protection against dismissal means legally,
• which procedures the employer must follow when dismissing a severely disabled employee and
• What severely disabled employees need to pay attention to in order to benefit from special protection against dismissal.

After reading this article, you will know exactly what your rights are as a severely disabled employee. You will also know how to enforce your rights in the event of termination. Expert for terminations in Hamburg Of course, I am also available to assist you personally.

Severely disabled employees have special protection against dismissal

Severely disabled people are particularly deserving of protection in our society. Severely disabled people are also particularly protected in employment relationships and granted special rights. Of particular importance is the special protection against dismissal after Section 168 SGB IX. It says:

Termination of the employment contract of a severely disabled person by the employer requires the prior consent of the Integration Office.

This will make the The interests of severely disabled people are protected even before a dismissal is announced by subjecting the dismissal to official control. The employer is absolutely dependent on the approval of the Integration Office, because a dismissal declared without consent is § 134 German Civil Code is ineffective.

BAG, judgment of 16.03.1994 – 8 AZR 688/92

Requirements for special protection against dismissal for people with severe disabilities

The special protection against dismissal is factual and personal conditions These are:

• Existence of an objective severe disability
• Equality with a degree of disability of at least 30
• The employment relationship existed for more than 6 months without interruption at the time of receipt of the notice of termination

Now, it's not uncommon for an application for recognition of severe disability or recognition of equal treatment to be submitted, but the authority doesn't make a decision quickly enough. In the meantime, the employee receives notice of termination. Does special dismissal protection still apply in these circumstances? The answer is: yes and no—it depends.

Severely disabled people: The decisive factor here is that (1) the determination of severe disability was applied for three weeks previously and (2) the employer was aware of the severe disability, but in any case (3) became aware of it no later than three weeks after receipt.

Equally severely disabled people: Here too, (1) recognition of equal treatment must have been requested three weeks before receipt of the notice of termination and (2) the employer must be aware of the equal treatment or (3) it must become known within three weeks of receipt of the notice of termination.

The two cardinal duties of the severely disabled employee

In summary, the employee must submit the application to the rehabilitation agency at least three weeks before receiving notice of termination. Otherwise, the special protection against dismissal will definitely not apply.

Federal Labor Court, judgment of 1 March 2007 – 2 AZR 217/06

It is also important and crucial that the employee informs the employer about the severe disability or the application no later than three weeks after receipt of notice of termination After the three-week period has expired, the employee can no longer invoke the special protection against dismissal.

Federal Labor Court, judgment of 22 September 2016 – 2 AZR 700/15

Decision of the Integration Office regarding approval of termination

The Integration Office decides at its own discretion, in accordance with the purpose of the special protection against dismissal, to protect severely disabled people from the harshness of dismissals. The interests of the employee and employer are weighed against each other, whereby the following applies: The less the dismissal is related to the employee's disability, the more the employee's interests become less important. The Federal Administrative Court ruled on this:

The Federal Administrative Court has already pointed out on several occasions that the protection of severely disabled persons gains in importance when the termination of the employment relationship is based on reasons that have their origin in the disability itself and that, as a result, the reasonableness limit for the employer to be taken into account in the context of the discretionary decision balancing the interests must be particularly high in order to be able to implement the protective idea of rehabilitation expressed in the law on severely disabled persons. BVerwG, judgment of 19 October 1995 – 5 C 24/93

This means that the Integration Office To then give consent This is because special dismissal protection generally aims to improve the legal protection of severely disabled people. Rather, it is about protecting against disability-related risks and preventing disability-related disadvantages compared to other employees.

However, it also follows that in the case of a dismissal for operational reasons The discretion of the Integration Office is limited in the case of closure of operations and significant operational restrictions according to Section 172 SGB IX even reduced to zero.

The same applies in the case of serious breaches of duty of employees who are dismissed for misconduct. However, the situation may be different in the case of dismissal for personal reasons This is because there is often a connection between severe disability and periods of illness. The Integration Office makes the granting of approval dependent on whether the company has suitable jobs available for the severely disabled employee. In individual cases, approval may be granted if meaningful work performance can no longer be expected under any circumstances.

The procedure before the Integration Office

The procedure before the Integration Office is similar for ordinary and extraordinary terminations, although not identical. In both cases, the approval procedure is Application to the Integration Office If the termination is for cause, the employer must request approval within two weeks of becoming aware of the relevant facts (Section 174 para. 2 SGB IXOtherwise, it is subject to extraordinary termination analogous to Section 626 para. 2 German Civil Code out of date.

Once the application has been submitted, the following distinction must be made:

At a ordinary termination the Integration Office decide on the application within one monthIf the Integration Office does not make a decision within three months, the employer must file an action for an order to obtain approval with the Administrative Court.

However, if it is a extraordinary termination, the Integration Office within two weeks The court must decide upon receipt of the application. If the court has not made a decision within two weeks, the consent is deemed to have been granted. This is a significant procedural difference from ordinary dismissal, in which the employer must file a lawsuit if the Integration Office fails to act.

Obtaining consent to the termination of a severely disabled person

As soon as the employer has received the consent, either through a consent notice from the Integration Office or through the fiction of consent under the law, he has one month after delivery of the notice to give notice of termination. This follows from Section 171 paragraph 3 SGB IX.

The employee can appeal against a positive decision of approval by the Integration Office or the presumption of approval by Action for annulment It is intended to eliminate the consent that is detrimental to the employee. If the employee is successful in their lawsuit, the consent will be subsequently revoked. This, in turn, would mean that the termination was carried out without the consent of the Integration Office, which would render the termination invalid.