No involvement of the representative body for severely disabled employees required before decision on the equal treatment application, BAG, 22.01.2020 - 7 ABR 18/18

The facts of the case: The dispute concerned an employee who is recognized as a disabled person with a degree of disability of 30 On 4 February 2015, she applied for equal status with a severely disabled person and informed her employer about the application. The employer then reassigned the employee to another team for a period of six months in November 2015 without first informing and consulting the representative body for severely disabled employees. The application for equal treatment was granted in April 2016 with retroactive effect from February 4, 2015.

The representative body for severely disabled employees objected to the employee's transfer, arguing that the employer had failed to "inform and consult them as a precautionary measure even if disabled employees who have submitted an equal opportunities application and informed the job center of this are to be transferred to another job". After the labor court granted the applications of the representative body for severely disabled employees to be informed and consulted as a precautionary measure when transferring a disabled employee, the Berlin-Brandenburg Regional Labor Court then dismissed the applications.

The Federal Labor Court confirmed the decision of the Higher Labor Court and rejected the employer's obligation to inform and consult the representative body for severely disabled employees as a precautionary measure in the event of an intended transfer of a disabled employee if a decision has not yet been made on the employee's application for equal treatment.

The decision: Pursuant to Section 178 (2) sentence 1 SGB IX, the employer must inform the representative body for severely disabled employees immediately and comprehensively in all matters that affect an individual or the severely disabled employees as a group and consult them before making a decision. Pursuant to Section 151 (1) SGB IX, this also applies to people with equivalent status to severely disabled persons. However, the BAG strictly adhered to the wording of the standard in this case: At the time of the employee's redeployment, a decision had not yet been made on her application for equal treatment. Accordingly, she was not yet treated equally at this time. Equality was only established by the constitutive determination of the Federal Employment Agency on April 21, 2016. The right of the representative body for severely disabled employees to participate in the transfer pursuant to Section 178 (2) sentence 1 SGB IX only existed from this point in time. The retroactive effect of equal treatment to the date of the application does not change this finding either. According to the BAG, this decision is also compatible with the requirements of EU law and the UN Convention on the Rights of Persons with Disabilities.