The dismissal of severely disabled employees (or persons of equal status) always poses challenges for many HR managers. In particular, the process and the right times for involving the works council, representatives of severely disabled people and the responsible integration office are unclear to many actors.
The following article is intended to remedy this.
1. LEGAL INITIAL SITUATION
Severely disabled employees have to § 168 SGB IX special protection against dismissal. This means that a change or termination notice is only effective if the responsible integration office has previously given its consent. Termination without the consent of the Integration Office is considered as follows Civil Code § 134 ineffective.
Under no circumstances should employers ignore this consent requirement and consider giving notice of termination without this requirement. According to the latest case law from the Federal Labor Court, the company can then make itself liable for damages.
If the company also has a representative for the severely disabled and a works council, the termination must therefore meet three formal requirements:
– Works council hearing (below under 3.)
– Participation in representation of severely disabled people (hereinafter under 4.)
– Approval of the Integration Office (below under 5.)
2. THE RIGHT PROCESS
In what order should the above officials be involved?
In our experience, it has proven successful to initially involve the works council and the representatives of the severely disabled at the same time. Approval is then requested from the Integration Office and the reaction of the works council and the representatives of severely disabled people is communicated in the application.
If an extraordinary or, alternatively, ordinary termination is to be issued, two applications to the Integration Office make sense. The first request for extraordinary termination should be made after the three-day period has expired § 102 BetrVG take place. The second application with regard to the ordinary termination then after the expiry of the one-week period § 102 BetrVG. Any other approach carries the risk that a court will block the two-week period § 626 para. 2 BGB no longer takes it for granted.
A possible process could therefore look like this:
- Hearing of the works council (see No. 3) and the representatives of the severely disabled (see No. 4)
- Afterwards and after the deadlines have expired: Application for approval from the Integration Office (see No. 5)
- After consent has been granted or the deemed consent has occurred:
– Notification of the decision to the representatives of the severely disabled and the works council
– Announcement of termination
3. PARTICIPATION OF THE WORKS COUNCIL
There are no special requirements regarding the participation of the works council. The only thing that needs to be pointed out at the hearing is that this is an employee with special protection against dismissal. It should also be pointed out during the hearing that the approval of the integration office will then be obtained.
4. PARTICIPATION OF THE SEVERELY DISABLED REPRESENTATION
The representative for the severely disabled is in accordance with the notice before the notice of termination is given § 178 Paragraph 2 SGB IX to contribute. In this context, it is important to know that the obligation to participate in the representation of severely disabled people goes further than in the works council hearing. Before giving notice of termination, the employer must also inform the representative of the severely disabled of the decision made. In order to ensure consistency here, we believe it makes sense to also make this notification to the works council.
5. PARTICIPATION IN THE INTEGRATION OFFICE
Approval must be requested from the local integration office in writing and in duplicate (see § 170 Paragraph 1 SGB IX) – the last century sends warm greetings. Many integration offices require you to use your own forms. It is therefore advisable to briefly surf the respective website 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 a regular termination, the integration office should make the decision within one month (§ 171 Paragraph 1 SGB IX). In practice, the process can take several months - depending on the integration office and the effort involved in the investigation.
Extraordinary termination:
The Integration Office must make its decision within two weeks of receiving the application (Section 174 Paragraph 3 SGB IX). If no decision is made within this period, consent is deemed to have been given (Section 174 Paragraph 3 SGB IX). Due to the fact that during the integration office procedure the deadline of § 626 para. 2 BGB is inhibited, the following procedure is recommended:
Note the deadline and call the integration office the day after the deadline expires.
If you as a company initially sit back and wait for the written decision from the integration office, this can no longer be seen as immediate in the sense § 174 Paragraph 5 SGB IX (see BAG ruling of April 19.04.2021, 2, Ref: 118 AZR 11/XNUMX).
