In a ruling of 02.06.2022 (Ref.: 8 AZR 191/21), the Federal Labour Court decided that the employer's breach of procedural or promotional obligations in favour of severely disabled employees can give rise to a rebuttable presumption under section 22 AGG .
1. facts
The plaintiff employee demands compensation from the defendant company under section 15 (2) AGG. He was employed by the defendant as a caretaker. The plaintiff had been unfit for work for a long period of time. Most recently he was in intensive care after suffering a stroke with hemiplegia. The defendant company dismissed the employee for operational reasons. The employee brought an action for unfair dismissal. The employer did not obtain the prior consent of the Integration Office. The parties concluded a termination settlement before the Labour Court, which also provided for a severance payment.
The employee justified his claim for compensation as follows: The company had violated procedural and promotional obligations in favour of severely disabled persons when giving notice of dismissal. As a result, he was disadvantaged because of his severe disability. In particular, the company had not obtained the approval of the Integration Office before issuing the dismissal. It was true that at the time of the dismissal, a severe disability had not yet been determined by the authorities and had not been applied for. However, his severe disability had been obvious.
Both the Labour Court and the Regional Labour Court dismissed the action. The Federal Labour Court dismissed the plaintiff's appeal.
Decision 2
The plaintiff had no claim for compensation against the company under section 15 (2) AGG. The severely disabled employee had not shown that he was discriminated against (here: dismissed) because of his (severe) disability. In individual cases, a violation of section 168 of the Social Code IX by the employer can give rise toa rebuttable presumption within the meaning of section 22 of the AGGthat the (severe) disability was a contributory cause of the discrimination. However, the plaintiff employee had not conclusively shown such discrimination. Contrary to the plaintiff's view, there were no obvious circumstances which would have led to the conclusion that the plaintiff had a (severe) disability.
3 Conclusion and recommendation for action
The decision shows once again. Companies should take the relevant provisions of SGB IX seriously. The case decided here is atypical because the employee had not yet been found to be severely disabled. However, in order not to fall under the presumption rule of Section 22 AGG, employers should always involve the Integration Office before dismissing a severely disabled person. However, companies should not act too offensively here. A hasty reflex to apply for a negative certificate at the first sign of a severe disability can give rise to a claim for damages by the employee concerned under Article 82 of the GDPR.
