Not without consulting the ombudsperson

Dismissals of severely disabled persons: strict new rule is in effect

If an employee has been officially recognized as a "severely disabled person" or has a comparable status, the employer must generally seek to obtain consent from the relevant public authority charged with ensuring equal employment opportunities of disabled persons (Integrationsamt) prior to a dismissal. Terminations without prior consent from this public authority are void (Section 85 of the ninth book of the Code of Social Law [Sozialgesetzbuch, SGB IX] and Section 134 of the German Civil Code [Bürgerliches Gesetzbuch, BGB]).

In businesses with at least five severely disabled persons or persons with comparable status (hereafter: "disabled persons"), an ombudsperson (Vertrauensperson) is to be appointed. It is the responsibility of this ombudsperson to safeguard the interests of disabled employees, and the employer must consult with the ombudsperson in any cases that may affect a single disabled employee or the group of disabled employees (Section 95, paragraph 2 of SGB IX). In cases of dismissals, this consultation must take place prior to issuing the termination (and arguably also prior to seeking the Integrationsamt's consent).

This is nothing new, and until 29^th of December, 2016, valid dismissals of disabled persons without proper consultation with the ombudsperson were possible. To be precise: Noncompliance with the rules of consultation did not directly affect the validity of the termination itself. While the employer was subject to administrative fines, the disabled person could not argue in an employment court that noncompliance with Section 95, paragraph 2 of 5GB IX rendered the termination void.

New law

As of 30^th of December 2016, this considerably changed: As part of a broader reform of, among other codes, 5GB IX, a new sentence 3 was added to Section 95, paragraph 2 of 5GB IX that explicitly renders terminations void where the ombudsperson was not consulted in advance. As a result, a new potential pitfall for terminations of disabled persons has been in place since 30^th of December 2016.

It can be argued that the effects of this change in the law will not be all too grave since the Integrationsamt, in the past as well as at present, has to check whether or not the employer correctly involved the ombudsperson and will at least have to inform the employer about any discrepancies. However, there are possible cases where the Integrationsamt may have simply overlooked the error. And then there are cases where the Integrationsamt's consent for a termination is not even required — e.g., during the first six months of a disabled person's employment (Section 9o, paragraph 2, No.1 of SGB IX).

Here, the omitted consultation may only be identified late in court proceedings. This can be catastrophic in cases of summary dismissals in terms of the limitation period in Section 626, paragraph 2 of the BGB. But for ordinary terminations, too, the loss of time and money can be considerable.

For these reasons, it is imperative to closely follow the rules of consultation with the ombudsperson in the event of a dismissal of a disabled person.

Formal requirements for the consultation process

The revised Section 95, paragraph 2 of 5GB IX does not detail the formal requirements for the consultation with the ombudsperson. Written consultation is not required but strongly advisable in order to document that a proper consultation process was followed.

The required content of such a consultation has also not been stipulated but must be construed in accordance with the underlying idea for involving the ombudsperson: The interests of the affected disabled employee are to be protected. Therefore, detailing the particulars of the disabled person and her/his situation in the employment relationship is sufficient.

The ombudsperson is not supposed to fully review the material reasons for the dismissal; this should be done by the works council (and, of course, by the employment courts later on). In practice, however, the consultation documentation for the ombudsperson will often match the documentation submitted to the works council. In the past, sending a copy of the very document prepared for the works council hearing and adding a specific cover letter to the ombudsperson has proven to be a helpful and pragmatic approach.

Another problem area is that lawmakers did not specify a deadline for the ombudsperson to react to the consultation. While this is a considerable flaw, it is safe to say that the time limits for consultation with the works council (Section 102, paragraph 2 of the Works Constitution Act [Betriebsverfassungsgesetz, BetrVG]) apply. Therefore, for ordinary terminations with notice, the ombudsperson will have to give a reasoned reply within one week of the consultation process having been initiated. In cases of summary dismissals, the reply must be made within three days. After this deadline, the employer may start to seek the consent of the Integrationsamt, even without the ombudsperson's reply.

How to act when dismissing a disabled person

The consultations with the ombudsperson and the works council must be performed and the Integrationsamt's consent to the dismissal must be sought prior to issuing the termination itself.

In practice, consultation with the ombudsperson and the works council should be initiated at the same time. The applicable deadlines for both proceedings are the same and, as stated above, the documents for both processes can also be virtually the same.

The works council and the ombudsperson may, however, react differently to their respective consultations. While the employer need not find a consensus with the ombudsperson or the works council, Section 95, paragraph 2, sentence 1 of 5GB IX requires the employer to inform the ombudsperson of the decision made.

For this reason, the employer must first examine the ombudsperson's reply before informing the ombudsperson of the decision made (to proceed with the dismissal).This should also be done in writing to create a paper trail. While it is uncertain whether the consultation with the ombudsperson must be concluded before involving the Integrationsamt, it is strongly advised to do so: The employer should not take any unnecessary risks here.

Consultation with the works council may take place independently. The employer may initiate this process before involving the Integrationsamt, during that involvement or even after it.

Finally, the termination letter must be delivered to the employee within one month of receiving the Integrationsamt's consent in cases involving ordinary terminations with notice (Section 88, paragraph 3 of 5GB IX). In cases involving summary dismissals, the termination letter must be delivered without undue delay (Section 91, paragraph 5 of 5GB IX). In cases involving the latter, it is strongly advisable to involve the works council at the beginning of the whole process in order to ensure timely operation.

Roadmap

Ordinary termination with notice:

• Consultation with the ombudsperson and the works council has been initiated at the same time.

• Responses to actual replies from the ombudsperson and works council have been made (e.g., further discussion of the details or receipt of information from the ombudsperson that the decision to go ahead with the dismissal has been made) or

• After one week without receiving a reply form the ombudsperson, application for the Integrationsamt's consent has been made and the ombudsperson has been informed of that decision.

• Termination letter delivered within one month of receiving the Integrationsamt's consent.

Summary dismissal:

• Consultation with the ombudsperson-son and the works council has been initiated at the same time.

• Responses to the actual replies have been made (see above) or

• After three calendar days without receiving a reply form the ombudsman-person, application for the Integrationsamt's consent has been made and the ombudsperson has been informed of that decision.

• Termination letter delivered immediately after receiving the Integrationsamt's consent.

If you have questions related to this topic, please feel free to contact
Dr Gerald Peter Müller (Attorney-at-Law, Licensed Labour and Employment Law Specialist).

Editorial note: This article was published in an almost identical version in the Labor Law Magazine, No 1/2017, p. 24 et seqq.