Termination without notice instead of a windfall: the case of terminating the employment of a severely disabled employee


Kündigung KartonSeverely disabled employees have worse opportunities on the job market. In light of this the legislature has made it difficult for employers to terminate employment contracts with severely disabled employees. Book IX of the German Social Code (SGB IX) does not just contain specific time limits, but also imposes further obligations on the employer. In a new judgment the Federal Labour Court (Bundesarbeitsgericht, BAG) has thankfully made a clear path through the jungle that is the SGB IX (dated 11.6.2020, 2 AZR 442/19).

Decision/Facts of the case

The decision focussed on a severely disabled employee, whose employment was terminated without notice instead of them receiving the windfall they were hoping for. 

The employee who brought the action worked as a caretaker and was provided with a portable landline telephone. At the end of February 2018 the employer noticed that a premium gambling number had been called from the telephone 2,756 times! After evaluating the times and connections there was a strong suspicion that the telephone was being misused. The hearing about this suspicion did not take place straight away as the claimant was ill for two weeks. A hearing first took place on 13 and 14 March 2018 after the employee had made a recovery. The employer subsequently applied to the Integration Office [Integrationsamt - a public body in Germany concerned with the integration of disabled people into professional life] on 16 March 2018 for consent to terminate the employment contract without notice. The Office allowed the statutory two-week deadline to expire (section 174 (3) sentence 2 SGB IX) and confirmed this in writing on 4 April 2018. Both the Works Council and the Disabilities Officer were consulted on the same day in relation to the termination. After their response, extraordinary termination without notice finally took effect on 10 April 2018.

The Düsseldorf Regional Labour Court (Landesarbeitsgericht, LAG) (previous instance) initially found for the claimant. The Integration Office was approached too late, i.e. they were not consulted within the two-week deadline(section 174 (2) SGB IX). The employee should have been invited to the hearing despite their illness. In addition, the employment was not terminated “without delay” after the participation of the Integration Office (section 174 (5) SGB IX).

The BAG overturned the impractical decision of the LAG, clearly stating: It is not for the Labour Court to check whether the two-week deadline for the participation of the Integration Office (section 174 (2) SGB IX) has been adhered to. This deadline is solely for the Integration Office to examine. In this regard, the Labour Court is bound by the autonomous decision of the Integration Office authorities. The Labour Court should only examine whether the employment was terminated “without delay” after the decision of the Integration Office (section 174 (5) SGB IX). In this context, the decision of the BAG was also welcome where it held that it is still sufficient to first involve the Works Council and the Disabilities Officer after the consent of the Integration Office authorities has been obtained (section 102 German Works Council Constitution Act (BetrVG) and section 178 (2) SGB IX). Furthermore, the BAG clarified that an employer is not obliged to hold a hearing during the illness of an employee to accuse them of a crime prior to dismissal on grounds of suspicion. The employer should usually await the employee’s recovery.

Practical relevance

This judgment of the BAG is encouraging in two respects as it provides all parties with legal certainty. 

– Dismissal on grounds of suspicion: The concept of dismissal on grounds of suspicion has long been recognised. (Extraordinary) termination may also be based on a strong suspicion of misconduct. Conclusive proof is not required. It is important that the employee hears the allegations made against them. The two-week deadline commences only after this has taken place (section 626 (2) German Civil Code (BGB), section 174 (2) SGB IX). An employee does not have to be invited to a hearing during their temporary illness (two to three weeks). The employer may wait until the employee has recovered. In the meantime, the decision of the Düsseldorf LAG had led to employees being bothered with hearings even during illness. In this respect, the decision by the BAG is also welcome from an employee perspective.

– Participation of the Integration Office: Section 174 SGB IX contains two deadlines that the employer must adhere to. On the one hand, the matter must be heard by the Integration Office within two weeks of becoming aware of the facts relevant to the termination. In terms of content this time limit corresponds to section 626 (2) BGB, but the crucial difference lies in the fact that the Labour Court may not examine adherence to this time limit. Constitutionally this is a matter solely for the Integration Offices/the Administrative Court (Verwaltungsgericht). This is a huge relief for employers in lawsuits for protection against dismissal as it eliminates a serious risk factor.

The Labour Courts are only to examine whether the employment contract has actually been terminated without delay after the Integration Office’s consent has been obtained. There is no need for unreasonable hurry here either. It is sufficient to first involve the Works Council and the Disabilities Officer at this point.

The legislature has made it more difficult to terminate the employment of severely disabled persons for good reason. But this must not result in it being impossible, as it were, to terminate the employment contract. The BAG rightly clarified – covering all formalities – that employers do not have to panic and rush into action. The statute does not state any priority order for the participation of the various bodies. However, to allay all doubts, it is recommended that the Works Council and the Disabilities Officer are not first involved only after the decision of the Integration Office. It is recommended to hear from all three bodies more or less at the same time to speed things up. In complicated cases obtaining legal advice is recommended. 

That the employee does not have to be informed about the allegation during illness is relevant and helpful, regardless of which side you represent.

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