To avoid the invalidity of a termination pursuant to Section 178(2) sentence 3 SGB IX (Book Nine of the Social Code), it is sufficient if the Representative for Severely Disabled Employees is duly heard at the latest before the notice of termination is issued. In terms of contents, the same principles apply as for the information of the Works Council. As for the comment periods, Section 102(2) Works Constitution Act applies analogously.

Federal Labor Court, December 13, 2018 – 2 AZR 378/18

In the legal dispute recently decided by the Federal Labor Court, the employer had initially obtained the consent of the Integration Office to terminate the plaintiff’s employment. Subsequently, after having obtained the relevant consent, the Works Council and the Representative forSeverely Disabled Employees were heard. Finally, a letter for a ordinary termination with due notice was issued . The plaintiff, who was granted a status equal to a severely disabled person, asserted the invalidity of the dismissal in court arguing that the employer had violated the duty to notify the Representative forSeverely Disabled Employees “without undue delay” as stipulated in Section 178(2) sentence 1 SGB IX and, additionally, had failed to inform the Representative forSeverely Disabled Employees of its dismissal decision after the conclusion of the hearing proceedings.

While the Labor Court and the State Labor Court had upheld the action for dismissal protection, the Federal Labor Court overturned the appeal judgment and remanded the case to the State Labor Court. In its decision, it clarified a number of controversial legal issues in connection with the hearing of the Representative for Severely Disabled Employees prior to the notice of termination of employment relationships with severely disabled employees or employees of equal status. These issues had arisen following an amendment to the law that entered into force on December 30, 2016, according to which the failure to duly involve the Representative for Severely Disabled Employees in advance in accordance with Section 95(2) sentence 3 SGB IX old version (now Section 178(2) sentence 3 SGB IX) results in the invalidity of the (unilateral) termination of the employment relationship of severely disabled employees or employees of equal status. This provision should make more effective the requirement, to which only little attention has been paid in practice to date, to inform the Representative for Severely Disabled Employees of an intended notice of dismissal without undue delay.

In its December 13, 2018 judgement, the Federal Labor Court now clarified that the invalidity pursuant to Section 178(2) sentence 3 SGB IX does not occur if the employer fails to hear the Representative for Severely Disabled Employees without undue delay, but if the hearing is done at least prior to issuing the notice of termination. The hearing does therefore not have to occur already prior to the participation of the Works Council or the consent proceedings before the Integration Office to avert ineffectiveness of the dismissal. Whereas according to Section 178 (2) sentence 1 SGB IX, the Representative for Severely Disabled Employees is to be notified of an intended notice of dismissal without undue delay, a later participation is permissible, however, in accordance with Section 178(2) sentence 2 SGB IX up to the actual implementation of the decision, in the event of a notice of dismissal thus up to the time that it is issued.

In addition, the Federal Labor Court also commented on the previously disputed issue whether the failure to give notification of the eventually taken dismissal decision to the Representative for Severely Disabled Employees in non-compliance of Section 178 (2) sentence 1 half sentence 2 SGB IX also entails the invalidity of the dismissal. The Federal Labor Court denied this, arguing that the omitted participation of the Representative for Severely Disabled Employees sanctioned with invalidity only covered those steps that are still ahead of the taking of the dismissal decision and that are thus designed to allow for influencing the employer’s decision. The duty to notify would, however, only concern the possibility of monitoring by the Representative for Severely Disabled Employees after the decision had been taken.

With respect to the contents of the notification pursuant to Section 178(2) sentence 1 SGB IX, the Federal Labor Court stated that it needed to be equivalent to the contents of a Works Council hearing. The employer must therefore submit to the Representative for Severely Disabled Employees the reasons for the notice of dismissal within the meaning of Section 102 Works Constitution Act. The Federal Labor Court thus rejected differing opinions in literature, which considered it sufficient to inform the Representative for Severely Disabled Employees only about such circumstances that are associated with the respective disability. The duty to provide comprehensive information would ultimately stem from the mandate of the Representative for Severely Disabled Employees, which also aims to provide comprehensive representation of the interests of severely disabled employees and employees of equal status.

In relation to the comment periods that the employer must grant to the Representative for Severely Disabled Employees, which the legislator overlooked and which are therefore not stated by Section 178(2) SGB IX, the Federal Labor Court drew the obvious parallel to the Works Council hearing and applied Section 102(2) Works Constitution Act analogously.

Note:

With its December 13, 2018 decision, the Federal Labor Court clarified some important issues relating to the participation of the Representative for Severely Disabled Employees in the process of giving notices of terminations. In practice, it will be advisable to provide the same information to the Works Council and the Representative for Severely Disabled Employees simultaneously. Even though the Federal Labor Court has now clarified that the participation of the Representative for Severely Disabled Employees only after the consent procedure before the Integration Office has been carried out does not render the dismissal invalid, employers should nevertheless hear the Representative for Severely Disabled Employees prior the Integration Office procedure where possible. Although participation of the Representative for Severely Disabled Employees that is not carried out “without undue delay” can still be remedied prior to the notice of dismissal is issues, the employer will nevertheless commit an administrative offense pursuant to Section 238(1) no. 8 SGB IX in case the information is not provided in due time. In addition, according to Section 170 (2) SGB IX the Integration Office must obtain the comments from the Representative for Severely Disabled Employees and the Works Council prior to its decision, anyway.. Prior participation of these bodies by the employer therefore serves to accelerate the procedure and avoids that these only learn of the intention of the notice of dismissal by the Integration Office for the first time.