The Federal Labor Court issued a judgment dated: June 02.06.2022nd, 8 (ref: 191 AZR 21/XNUMX) decided that the employer's violation of procedural or support obligations in favor of severely disabled employees constituted a rebuttable presumption § 22 AGG can justify.

1. FACTS

The plaintiff employee demands compensation from the defendant company Section 15 Paragraph 2 AGG. He was employed by the defendant as a caretaker. The plaintiff was unable to work for a long period of time. Most recently, he was in the intensive care unit after a stroke with paralysis on one side. The defendant company terminated the employee for operational reasons. In contrast, the employee filed a lawsuit for protection against dismissal. The employer did not obtain prior consent from the Integration Office. The parties concluded a termination settlement before the labor court, which also provided for a severance payment.

The employee justified his compensation claim as follows: When issuing the termination notice, the company violated procedural and support obligations in favor of severely disabled people. This puts him at a disadvantage because of his severe disability. In particular, the company did not obtain the consent of the Integration Office before issuing the termination notice. At the time the termination was announced, severe disability had not yet been officially established and had not been applied for. However, his severe disability was obvious.

Both the labor court and the state labor court dismissed the lawsuit. The Federal Labor Court rejected the plaintiff's appeal.

2. DECISION

The plaintiff has no claim for compensation against the company Section 15 Paragraph 2 AGG. The severely disabled employee did not explain that his disadvantage (here: dismissal) was due to his (severe) disability. A violation by the employer § 168 SGB IX In individual cases, a rebuttable presumption in the sense of: § 22 AGGjustify that the (severe) disability was one of the reasons for the disadvantage. However, the plaintiff employee did not conclusively demonstrate such discrimination. Contrary to the plaintiff's opinion, there were no obvious circumstances that would have suggested that the plaintiff was (severely) disabled.

3. CONCLUSION AND RECOMMENDATION FOR ACTION

The decision shows again. Companies should take the relevant regulations of SGB IX seriously. The case decided here is atypical because the employee had not yet been diagnosed with a severe disability. But in order not to fall into the conjecture rule of § 22 AGG Employers should always involve the integration office before terminating a severely disabled person. However, companies should not act too aggressively here either. The hasty reflex of applying for a negative certificate at the first signs of severe disability can result in a claim for damages from the affected employee Art. 82 GDPR justify.