The dismissal of severely disabled employees (or persons of equal status) is a recurring challenge for many HR managers. In particular, the course of the procedure and the correct times for involving the works council, the representative body for severely disabled employees and the relevant integration office are unclear to many stakeholders.
The following article is intended to remedy this situation.
1. Legal starting position
Severely disabled employees have special protection against dismissal in accordance with § 168 SGB IX. This means that a notice of termination or termination of employment is only effective if the relevant integration office has given its prior consent. A notice of termination issued without the approval of the Integration Office is invalid under Section 134 of the German Civil Code (BGB ).
Under no circumstances should employers ignore this consent requirement and come up with the idea of giving notice without this requirement. Because then, according to the latest case law of the Federal Labor Court, the company may be liable for damages(see here).
If the company also has a representative body for severely disabled employees and a works council, the notice of termination must therefore meet three formal requirements:
- Hearing works council (below under 3.)
- Participation of representatives of the severely disabled (see 4. below)
- Consent of the Integration Office (hereinafter under 5.)
2. The correct procedure
In what order should the above functionaries be involved?
In our experience, it has proven useful to first involve the works council and the representative body for the severely disabled at the same time. Subsequently, the approval of the Integration Office is requested and the reaction of the works council and the representatives of the severely disabled is already communicated in the request.
If an extraordinary and, in the alternative, ordinary termination is to be pronounced, two applications to the Integration Office are advisable. The first application in relation to the extraordinary termination should be made after the expiry of the three-day period of § 102 BetrVG. The second application in relation to the ordinary termination should be made after the expiry of the one-week period of § 102 BetrVG. Any other procedure entails the risk that a court will no longer consider the suspension of the two-week period of Section 626 (2) of the German Civil Code to be given.
A possible sequence could therefore look as follows:
- Hearing of the works council (see No. 3) and the representative of the severely disabled (see No. 4)
- Subsequently and after expiry of the deadlines: request for approval from the Integration Office (see no. 5)
- After consent has been granted or the consent fiction has occurred:
- Notification of the decision to the representative body for severely disabled employees and the works council
- Issuance of the notice of termination
3. Participation of the works council
No special rules apply with regard to the involvement of the works council. It is only necessary to point out in the hearing that the employee in question has special protection against dismissal. In addition, it should be pointed out in the hearing that the approval of the Integration Office will be obtained subsequently.
4. participation of the representative body for severely disabled persons
The representative body for the severely disabled must be involved before the notice of termination is issued in accordance with Section 178 (2) SGB IX. In this context, it is important to know that the participation obligations towards the representative body for severely disabled persons go further than in the case of the works council consultation. Before issuing the notice of termination, the employer must also inform the representative body for severely disabled employees of the decision taken. In order to have a synchronization here, it makes sense in our opinion to make this notification to the works council as well.
5. participation of integration office
The consent must be applied for in writing and in duplicate at the locally responsible integration office (compare § 170 para. 1 SGB IX) - the last century sends its warmest greetings. Many integration offices require the use of their own forms. Therefore, it is advisable to take a quick look at the respective Internet site and find out about the requirements before sending the application for consent. Below you will find the web addresses of all 16 integration offices (just click on it):
Ordinary termination:
In the case of an ordinary termination, the integration office should make the decision within one month(Section 171 (1) SGB IX). In practice, the procedure can take several months, depending on the integration office and the amount of investigation required.
Extraordinary termination:
The Integration Office must make its decision within a period of two weeks after receipt of the application (Section 174 (3) SGB IX). If no decision is made within this period, the approval is deemed to have been granted (Section 174 (3) SGB IX). Due to the fact that the time limit of Section 626 (2) BGB is suspended during the integration office procedure, the following procedure is recommended:
Note the deadline and call the Integration Office the day after the deadline expires.
If a company initially sits back and waits for the written notification from the Integration Office, this can no longer be considered immediate within the meaning of Section 174 (5) SGB IX (see BAG ruling dated April 19, 2021, ref. no.: 2 AZR 118/11).
