The previous legal situation
According to Section 95 para. 2 sentence 1 SGB IX, the employer must immediately and comprehensively inform the representative body for severely disabled employees in all matters that affect an individual or severely disabled persons as a group and consult them before making a decision. Even if many employers were not aware of this provision or at least did not take it into account, the SBV was already required to be involved before the dismissal of a severely disabled employee under the old legal situation. However, this obligation proved to be a "toothless tiger", as a dismissal was effective even without the required involvement. In this case, the employer was "only" threatened with a fine in accordance with Section 156 para. 1 no. 9 SGB IX.
The new version
The background to the new version was the aim of giving more weight to the SBV's right to be involved prior to a dismissal by the employer. In order to achieve this goal, proper participation in the form of informing and consulting the SBV has been an additional requirement for the effectiveness of a dismissal of a severely disabled employee or an employee of equal status since 30.12.2016.
As understandable as the new regulation may be in terms of language, it raises questions when it comes to concrete implementation:
- It is not clear from the new provision to what extent the employer must inform the SBV. In contrast to informing the works council, for example, in accordance with Section 102 para. 1 BetrVG, participation in accordance with Section 95 para. 2 sentence 3 SGB IX serves (exclusively) to safeguard disability-specific interests. The scope must be based on this purpose. The employer does not have to put the SBV in a position to review the legality of the dismissal in every respect.
- In addition to being informed, the SBV must also be consulted. Under the old legal situation, proper consultation required that the employer gave the SBV the opportunity to comment on the matter in question. It was also necessary for the employer to take note of the comments made(BAG, decision of 14.03.2012 - 7 ABR 67/10). Unfortunately, Section 95 SGB IX does not specify a time limit for the consultation procedure, in particular for the submission of the required statement. This loophole, which was probably not intended by the legislator, could be closed by analogous application of Section 102 para. 2 BetrVG. In this case, the SBV would have one week to submit a statement in the event of an ordinary dismissal and three days in the event of an extraordinary dismissal. Without a deadline provision, the SBV would even have the option of delaying the dismissal procedure at will by simply failing to act.
The practical application of the legislative innovations and, in particular, the expected court decisions on the interpretation of the law will probably provide clarification here in the near future. In any case, employers will in future have to fulfill an extended range of duties before giving notice of dismissal to severely disabled employees or employees of equal status and, in particular, must comply with the following mandatory steps:
- Involvement of the representative body for severely disabled employees
- Application for approval from the integration office
- If applicable, involvement of the works council / staff council / employee representative body
Philipp Harländer