Germany: Consultation of representative body for severely disabled employees prior to transfer
A disabled employee had applied for an official recognition as being severely disabled. She informed her manager of such application. While the process with authorities was still ongoing, the disabled employee was assigned to a different team for a six month period in November. This happened without consulting the representative body for severely disabled persons. Later on, the employee was recognised by authorities as severely disabled with retroactive effect and was therefore already severely disabled at the time of her transfer to the new role.
The representative body for severely disabled employees, which needs to be involved before any measure affecting a severely disabled employee transpires, claimed a violation of its rights in court. The representative body argued that it has to be involved, even when measures are taken against employees who have only applied for the recognition of their severe disability.
The Federal Labour Court ruled that a preventive participation right of the representative body does not exist. The employer must immediately inform and consult the representative body for severely disabled employees in all matters affecting severely disabled employees. This applies to severely disabled employees and to disabled employees, who have been recognised as severely disabled. However, there is no right of participation regarding disabled employees who have merely applied for the recognition of their severe disability and have not yet received a decision.
Therefore, the representative body for disabled employees only needs to be involved in measures effecting disabled employees, after their status has been formally recognised. Even if the recognition of a severe disability is retroactive, the employer does not have to consult the representative body as a precautionary measure. This decision significantly reduces the risks for employers, as they may not even be aware of the application.
By way of general background:
The representative body for severely disabled employees must be established if at least five severely disabled employees work in a company. Its members are elected by all severely disabled employees. The representative body is intended to promote the integration of severely disabled employees and represent their concerns in the company. Its position is comparable to that of the works council in regard to severely disabled employees. Therefore, the representative body for severely disabled employees is equipped with a large number of rights. It must be involved in all measures affecting severely disabled employees, including dismissals. A dismissal issued without consultation of this body will be ineffective, and the employee has to be reinstated.
For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Dr. Tobias Pusch (Partner) of Pusch Wahlig Legal at pusch@pwwl.de or visit www.pwwl.de.
