Within the scope of the Federal Act on Participation (Bundesteilhabegesetz), the legislator has standardised an additional validity condition for dismissing a disabled employee or equivalent individual by means of the new Section 95 paragraph 2(3) Social Code (Sozialgesetzbuch, “SGB”), largely unnoticed by the public. Since 30/12/2016, an employer must involve the representative body for disabled employees (“RBDE”) before giving notice of dismissal. If this is not done, the dismissal is irrevocably invalid.
On the current legal position
Pursuant to Section 95 paragraph 2(1) SGB IX, the employer must in full and without undue delay consult the representative body for disabled employees on all matters relating to a disabled individual or disabled persons as a group, and must hear this body to before a decision is made. Although many employers are not aware of this provision and many others have not taken it into account, the previous legal position already required that the RBDE participate in the process prior to the dismissal of an employee living with a disability. This requirement proved to be a ‘paper tiger’ as dismissal remained effective even without the stipulated participation. In this instance, the employer ‘only’ faced a fine pursuant to Section 156 paragraph 1(9) SGB IX.
On the new version
The new version sought to place more emphasis on the requirement to involve the RBDE prior to dismissal by the employer. To achieve this goal, since 30/12/2016, ordinary participation in the form of instruction and hearing of the RBDE represents an additional validity condition for the dismissal of a disabled employee or equivalent individual.
As linguistically clear as the new provision may be, it continues to raise questions regarding concrete implementation:
- The new provision does not indicate to what extent the employer must inform the RBDE. In contrast to information of the works council pursuant to Section 102 paragraph 1 Works Constitution Act (Betriebsverfassungsgesetz, “BetrVG”), for example, participation pursuant to Section 95 paragraph 2(3) SGB IX (only) serves to protect interests specific to disabilities. The scope must be directed specifically towards this purpose, and the employer must not put the RBDE in a position where it is able to review the lawfulness of every respect of the dismissal.
- Alongside consultation, a requirement has been put in place to hear the arguments of the RBDE. According to the previous legal position, a proper hearing presumed that the employer had given the RBDE the opportunity to provide an opinion on the issue at hand. Furthermore, the employer was also required to take note of the opinion given (Federal Labour Court, judgement of 14/03/2012 – 7 ABR 67/10). Unfortunately, no deadline is set in Section 95 SGB IX for hearings, in particular for submission with respect to the submission of the required opinion. However, this unintended loophole could be closed by analogously applying the principles of Section 102 paragraph 2 BetrVG, which would effectively give the RBDE one week to submit an opinion in the case of ordinary dismissal, and three days in the case of extraordinary dismissal. If no deadline were fixed, the RBDE would even be able to delay the dismissal proceedings for any length of time by simply failing to act.
Practical application of legislative changes, and in particular, the awaited legal rulings on interpretation of these amendments, are likely to provide clarification on this matter in the near future. In any case, employers will have to meet a range of additional obligations and follow the steps set out below before dismissing disabled employees or individuals with equivalent status in future:
- Participation of the representative body for disabled employees
- Request for approval with the Integration Office
- Participation of the works council/staff council/employee representation as required