Involvement of the representative body for severely disabled employees in the event of dismissal

The dismissal of a severely disabled employee is not invalid because the employer did not immediately inform the representative body for severely disabled employees of his intention to dismiss or did not immediately inform it of his decision to dismiss, press release no. 68/18 on BAG, judgment of 13.12.2018, 2 AZR 378/18

Legal background: The employer is obliged to inform the representative body for severely disabled employees immediately and comprehensively in all matters concerning a severely disabled person and to consult them before making a decision, Section 95 (2) SGB IX old version / Section 178 (2) SGB IX (since 01.01.2018). If a severely disabled employee is to be dismissed, in addition to the involvement of the representative body for severely disabled employees, approval for the dismissal must also be requested from the responsible integration office. If there is a works council, it must also be consulted. There is no legal regulation on the order in which the employer must carry out the various participation procedures. In literature and case law, however, the prevailing view has been that the employer must first involve the representative body for severely disabled employees ("without delay") and only then may the integration office and the works council be involved. If this sequence was not adhered to, the dismissal was already invalid solely due to a breach of the participation rights of the representative body for severely disabled employees in accordance with Section 95 (2) SGB IX (old version) / Section 178 (2) SGB IX (since 01.01. 2018).

The BAG now takes a different view: In the legal dispute recently decided by the BAG, the employer had initially applied to the competent integration office for approval of the dismissal of a severely disabled employee. Only after the latter had granted its approval did the employer consult the works council and the representative body for severely disabled employees about its intention to dismiss and then terminated the employment relationship with the severely disabled employee. The employee filed an action for unfair dismissal. The lower courts saw the employer's actions as a violation of the participation rights of the representative body for severely disabled employees pursuant to Section 95 (2) SGB IX (old version) / Section 178 (2) SGB IX (since 1 January 2018) and declared the dismissal invalid, as the employer had not immediately involved the representative body for severely disabled employees. In the opinion of the BAG, this was wrong: The required content of the consultation and the duration of the deadline for a statement from the representative body for severely disabled employees are based on the principles applicable to the consultation of the works council (Section 102 BetrVG). It is undisputed that the employer can only involve the works council after the approval procedure has been completed. In the opinion of the BAG, the same must therefore also apply to the involvement of the representative body for severely disabled employees. The Court of Appeal therefore wrongly assumed that the dismissal was invalid due to a violation of Section 95 (2) SGB IX (old version) / Section 178 (2) SGB IX (since January 1, 2018).

Conclusion and consequences: In future, which participation procedure the employer pursues first will no longer play a role in the effectiveness of a dismissal of severely disabled employees. When consulting the representative body for severely disabled employees, it must be ensured that it is just as detailed as a works council consultation and that it is subject to the same deadlines for comments (ordinary dismissal = 1 week, extraordinary dismissal = three days). For reasons of time, it is advisable to conduct all participation procedures in parallel so as not to lose any unnecessary time before the dismissal is announced.