Special protection against dismissal applies to severely disabled persons: Without the approval of the Integration Office, dismissal of severely disabled persons is generally invalid! According to the will of the legislator, severely disabled employees should enjoy special protection due to their handicap. This is expressed in particular in the special protection against dismissal, which is regulated in §§ 168-175 SGB IX. Nevertheless, this does not mean that severely disabled persons cannot be dismissed. In the following, I explain who is protected, how the procedure before the Integration Office works and what can be done in the event of a notice of termination being issued.
1. protected group of persons:
The special protection against dismissal applies to all employees with a severe disability – regardless of whether they are executives or trainees.
Severe disability from a GdB of 50
People are considered severely disabled if they have a degree of disability of at least 50 (§ 2 para. 2 SGB IX). The severely disabled status must either be obvious or officially established at the time of termination.
Exceptionally, an application for determination of the severely disabled status that has already been submitted may also be sufficient. The corresponding request must be made at least three weeks before receipt of the notice of termination. If a positive decision is made on the application at a later date, the determination will take effect at the time of application, so that special protection against dismissal will also be granted retroactively. The prerequisite here is also that the severe disability already existed at the time of the application.
If the employer has not yet become aware of the severe disability or the application for determination of the severe disability, the employee concerned must notify the employer of his or her status as a severely disabled person no later than three weeks after receipt of the notice of termination or inform the employer of the application made. Otherwise, his status as a severely disabled person will not protect him from dismissal.
Equality from a GdB of 30
In addition to the group of severely disabled persons, people with a degree of disability of at least 30 may also fall under the special protection against dismissal if they have been given equal status to severely disabled persons. Equal treatment of disabled persons is granted upon application to the Federal Employment Agency. If the person concerned is unable to find suitable work due to his or her disability, or if an existing job is at risk due to the disability, so-called equality is granted. Here, too, equality must be granted before the notice of termination is issued or at least applied for three weeks before the notice of termination is issued in order to trigger the special protection against dismissal.
For special protection against dismissal for severely disabled persons, the employment relationship must have existed for at least six months. In the case of employment relationships that last longer than six months, severely disabled persons and their equals enjoy special protection against dismissal, regardless of whether the company is a so-called small business or one with more than ten employees.
2. proceedings before the integration office
One thing in advance: The special protection against dismissal for severely disabled persons does not mean that this group of persons cannot be dismissed per se.
However, an employer who wishes to terminate a severely disabled employee has to follow a special procedure according to §§ 168 ff. SGB IX. Before terminating a severely disabled employee, the employer must obtain the approval of the Integration Office.
A notice of termination issued without the approval of the Integration Office is per se invalid, even if the termination would have been legal on the merits.
The employer must therefore contact the Integration Office before giving notice of termination to a severely disabled employee. In a so-called approval procedure, the Integration Office examines the reasons for the employer’s intended termination. The main focus of the audit is on the special need for protection of severely disabled employees. The termination must not be related to the affected employee’s disability.
If there is a works council/staff council or a representative body for severely disabled persons, the Integration Office must obtain their opinions.
In addition, the Integration Office must hear the employee concerned (Section 170 (2) SGB IX).
In making its decision, the Integration Office must take into account all circumstances relevant to the individual case. It must therefore weigh the reasons for termination cited by the employer, the information provided by the employee and the opinions of the other parties involved.
3. the integration office is not an upstream labor court
However, the Integration Office does not act here as an upstream labor court.
It is only necessary to check whether the termination is related to the employee’s severe disability. If this is not the case, consent to termination shall be granted.
If the notice of termination is given, for example, for reasons of conduct on the part of the employee or for operational reasons, the Integration Office may not examine in advance whether the reasons cited by the employer can justify termination. This is left to the labor judges.
4. exceptions to the consent requirement
If the severely disabled employee terminates the employment relationship himself or herself or reaches an agreement with the employer to terminate the employment relationship, the prior consent of the Integration Office is not required.
The approval of the Integration Office is also not required if the employment relationship is limited in time and is terminated after the expiry of the time limit.
The law also provides an exception for the termination of severely disabled employees who have reached the age of 58 and are entitled to severance pay or similar benefits.
Finally, this is reduced at the discretion of the Integration Office in the event of a plant closure or comprehensive restriction.
5. notice received despite the severe disability – how to react?
If you are severely disabled or have the same status as a severely disabled person and have been dismissed without the prior consent of the Integration Office, you can remain relaxed for the time being. The termination is per se invalid and an action for protection against dismissal before the labor court is very promising.
If, on the other hand, the employer has obtained the approval of the Integration Office before issuing the notice of termination, you can appeal against the decision of the Integration Office. If this is also not remedied, an action against the decision of the Integration Office can also be brought before the Administrative Court.
At the same time, you have the option of bringing an action for protection against dismissal before the labor court in order to have the dismissal declared invalid for other reasons as well.
6 Conclusion:
As a severely disabled employee or employee with equal rights, you do not enjoy absolute protection against dismissal and dismissal is still possible, but at least the hurdles for this are significantly higher.
The employer must ask the Integration Office for approval before terminating the employment of severely disabled persons. Depending on the integration office, this procedure can take several months, so that a notice of termination can be issued correspondingly later. Already in the hearing procedure there is the possibility to dissuade the employer from the termination again. As a rule, the Integration Office also tries to work towards this.
If all this does not help, in addition to this special protection against dismissal, there is still the general protection against dismissal, so that the notice of dismissal can be put to the test in an action for protection against dismissal before the labor court.
