Germany: The dismissal of a severely disabled person is not ineffective just because the representation of severely disabled persons was not immediately informed by the employer of the intention of termination
When an employer intends to terminate a severely disabled person, there are several proceedings that must be carried out before the termination can be issued: The employer has to request the permission of the integration office for the termination, he has to hear the works council (if existing in the establishment) and he has to hear the representation of severely disabled persons (if existing in the establishment). The latter is an internal employee body which is to encourage the integration of severely disabled employees and counteract discrimination. Such representation shall be established when there are more than five severely disabled employees employed in the establishment.
In the case before the German Federal Labour Court, an employer intended to terminate the employment relationship with a severely disabled employee employed in an establishment where both a works council and a representation of severely disabled persons existed. At the end of 2016, the employer applied for permission to terminate the employment relationship with the severely disabled employee at the competent integration office. This permission was granted. Only after receiving the permission, the employer heard the works council and the representative body for severely disabled employees. The notice of termination was then issued to the employee in March 2017. The employee filed a lawsuit against the termination, claiming it was ineffective as the representation of severely disabled persons was not heard immediately after the employer had formed the intention to terminate the employment relationship, but only after completing the proceeding with the integration office.
German law provides that the representation of severely disabled persons has to be informed “without undue delay” of any matters concerning one or several severely disabled employees and has to be heard before a decision is made. The termination of the employment relationship of a severely disabled person is ineffective if the representation of severely disabled persons is not heard before the termination is issued.
However, the German Federal Labor Court ruled that the dismissal in the case described above was not ineffective just because the employer did not involve the representation of severely disabled persons already before the official proceedings in front of the integration office and before the hearing of the works council. Hearing the representation of severely disabled persons before the termination was issued to the employee was sufficient. This ruling makes it easier for employers to co-ordinate the different proceedings that must be completed before a notice of termination can be issued to a severely disabled employee. The Federal Labour Court clarified that it is permissible to wait until the integration office and the works council have approved the termination of a severely disabled employee before involving the representation of severely disabled persons. However, the representation of severely disabled persons needs to be informed without delay after the other proceedings have been completed. Of course, it remains possible to start all necessary proceedings at the same time and issue the termination once the last proceeding was completed.