Dismissal of severely disabled employees: Lack of prior involvement of the Integration Office costs
According to section 168 of Book IX of the Social Code (SGB IX), the Integration Office's consent is a prerequisite for the effectiveness of an employer's intention to terminate an employment relationship with a severely disabled person. It is intended to take account of the person's special interest in protection and to compensate for disadvantages in the labor market resulting from the disability. If employers violate this provision, the dismissal is null and void.
According to the press release available so far, the Federal Labour Court (Bundesarbeitsgericht - BAG) has now taken the position that the non-participation of the Integration Office prior to the dismissal of severely disabled employees may in individual cases give rise to the rebuttable presumption within the meaning of section 22 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz - AGG) that a direct discrimination associated with the dismissal occurred because of the severe disability. This may then result in the employer being obliged to pay compensation (section 15 (2) AGG).
The facts of the case
The severely disabled plaintiff worked for the defendant at a primary school as a caretaker and was incapacitated for several weeks due to a stroke and a resulting hemiplegia. Thereupon, the defendant terminated the employment relationship with the plaintiff without, however, involving the Integration Office in advance. The severe disability had not been recognised by the authorities at the time the notice of termination was received. The plaintiff challenged the dismissal in subsequent unfair dismissal proceedings, in which the parties reached a settlement for the amicable termination of the employment relationship.
The plaintiff subsequently filed a claim for compensation under section 15(2) AGG, arguing that the defendant had discriminated against him because of his disability. This resulted, inter alia, from the fact that when terminating the employment contract, the defendant had violated the obligation to (pre-)involve the Integration Office and thus also violated procedural and promotional obligations in favor of severely disabled persons. Although the recognition of the severe disability had not been applied for at the time of the termination, it had in any case been obvious. The defendant had been aware at the time of receipt of the dismissal that the plaintiff was hemiplegic as a result of a stroke.
The competent labor court and the Higher Labor Court of Saxony-Anhalt dismissed the action. The BAG agreed - the appeal was unsuccessful. The BAG argued as follows:
The plaintiff has no claim to payment of compensation. According to the BAG, the lack of involvement of the Integration Office prior to the dismissal of a severely disabled employee could, in individual cases, give rise to the rebuttable presumption within the meaning of section 22 of the AGG that the severe disability was (partly) the cause of the discrimination (within the meaning of section 3 of the AGG) resulting from such dismissal. However, the plaintiff had not conclusively shown that the defendant had violated its duty to involve the Integration Office. Even if it were true that the plaintiff had suffered a stroke and had been treated in intensive care with hemiplegia, there were no circumstances according to which a manifest severe disability could be assumed at the time of the defendant's dismissal. The assumption of the Saxony-Anhalt Regional Labor Court that the plaintiff had not presented any other indications of a disadvantage due to the disability also held up in the appeal and was confirmed by the BAG.
Be careful before giving notice
In the decision of the BAG considered here, the only decisive factor for the denial of the defendant's obligation to pay compensation was that the plaintiff could not substantiate or prove his (severe) disability or that it was obvious to the defendant employer.
However, if the severe disability is known or recognised by the authorities and a dismissal is nevertheless issued without the prior consent of the Integration Office, employees only have to present circumstantial evidence of discrimination due to the disability in any legal proceedings for compensation. It would then be the employer's task to refute this circumstantial evidence and provide counter-evidence (so-called reversal of the burden of proof). If this is not successful, the alleged and circumstantial disadvantage due to a disability can be the basis for a compensation payment under the AGG.
In connection with the application of a severely disabled person, the BAG (9 AZR 635/03) already assumed that a violation of the regulations to be observed in the application procedure to promote the participation of severely disabled persons in working life can be an indication of discrimination within the meaning of the AGG and thus trigger a claim for compensation. In this respect, the claim for compensation now discussed by the BAG due to the failure to involve the Integration Office prior to issuing a notice of dismissal is no surprise, but is in line with previous case law.