At a glance
- Employers have a legal obligation under Section 164 (2) of the Social Security Code, Book Nine (SGB IX) to prevent discrimination against employees who are severely disabled.
- Violating this prohibition can render a dismissal invalid.
- A recent judgment from the Cologne Labour Court suggests that discrimination occurs when an employer fails to fulfil their duty to implement a prevention procedure as outlined in Section 167 (1) of the SGB IX.
Background
Severely disabled employees benefit from enhanced special protection against dismissal. According to Section 168 SGB IX, the termination of the employment relationship of severely disabled persons by the employer requires the prior consent of the integration office. However, this special protection against dismissal in accordance with Section 173 (1) SGB IX does not apply if the employment relationship has not existed for more than six months without interruption at the time the notice of termination is received.
However, a notice of termination issued before the end of this waiting period may also be invalid for other reasons. Notably, a breach of the prohibition against discrimination in favour of severely disabled employees (Section 164 (2) of the SGB IX) could render the dismissal questionable. Employers are prohibited from discriminating against severely disabled employees based on their disability. Any violations of this prohibition result in the invalidation of the dismissal.
A recent ruling by the Cologne Labour Court (case no. 18 Ca 3954/23) addresses this matter. In the specific case, the dismissal took place within the first six months without the employer having previously conducted a prevention procedure (Präventionsverfahren) in accordance with Section 167 (1) SGB IX. Pursuant to Section 167 (1) SGB IX, if personal, behavioural, or operational challenges arise in the employment relationship that could jeopardise this relationship, the employer shall involve the representative body for severely disabled employees and the integration office as early as possible. The employer should explore all available options, including consultation and potential financial support, to address these difficulties and ensure the continued permanence of the employment relationship.
According to the Cologne Labour Court, an interpretation of this standard in accordance with EU law (Art. 5 Directive 2000/78/EC and Art. 27 (1) (a) of the UN Convention on the Rights of Persons with Disabilities) shows that the employer is also obliged to conduct a prevention procedure in accordance with Section 167 (1) SGB IX during the six-months waiting period. This procedure aims to address any challenges that may arise in the employment relationship and could potentially jeopardise its continuity.
During a dismissal process, discrimination (as outlined in Section 164(2) of the SGB IX) is indicated if the employer fails to fulfil its obligation under Section 167(1) of the SGB IX. Consequently, in the specific case at hand, the dismissal violates the prohibition of discrimination as stated in Section 164(2) of the SGB IX and is therefore invalid.
Interestingly, the Cologne Labour Court diverges from the Federal Labour Court’s decision (case no. 8 AZR 402/14). The Federal Labour Court states that there is no discrimination based on severe disability if the employer does not carry out a prevention procedure within the first six months of the employment relationship.
Takeaways for employers
The Federal Labour Court clarified that the implementation of prevention procedure is not a prerequisite for the effectiveness of a dismissal. However, the Cologne Labour Court holds a different opinion. It emphasises that discrimination is indicated if the employer neglects to offer a prevention procedure. Therefore, according to the Cologne Labour Court, the prevention procedure significantly impacts the effectiveness of a dismissal. It remains unclear how other courts will deal with this decision and whether the Federal Labour Court will be dealing with the effects of the prevention procedure again soon and reconsider its stance in the future.
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