1. Initial situation

The dismissal of a severely handicapped person by the employer requires the prior consent of the Integration Office (Section 168 SGB IX (Book IX of the German Social Security Code)). In addition, the employer must consult the works council before serving the notice of termination. If the employer fails to do so, the termination is ineffective (Section 102 (1) BetrVG (German Labor-Management Relations Act)). The employer must also notify and consult the representative body for severely disabled employees »without delay and comprehensivel« (Section 178 (2) sentence 1 SGB IX). Please note: If the employer does not involve the representative body for severely disabled employees or does not do so correctly, the termination is ineffective (Section 178 (2) sentence 3 SGB IX).

However, to date, the contents of the consultation was unclear. How long does the representative body for severely disabled employees have to issue a statement on the matter? When must the consultation take place? The Federal Labor Court has now answered these controversial questions in its ruling of December 13, 2018 (Ref. 2 AZR 378/18). This ruling was issued pursuant to Section 95 (2) SGB XI (old version), the identical predecessor regulation of Section 178 (2) SGB IX and is therefore directly applicable to today's legal situation.

2. Content of the consultation

The law says nothing about the required content for the consultation of the representative body for severely disabled employees. Leipzig Labor Court (ruling of August 7, 2017, ref. 8 Ca 1122/17) held that, in terms of content, the employer’s duty to inform the representative body for severely disabled employees could be subordinated to the duty to inform the works council. This was rejected by the Federal Labor Court. In the ruling of December 13, 2018, which was previously available as a press release, the Federal Labor Court emphasized that the required content of the consultation of representative body for severely disabled employees is based on the principles applicable to the consultation of the works council.

3. Deadline for statements

This also applies to the deadline for statements by the representative body for severely disabled employees. No legal regulations exist in this regard either. To date, the time limits under Section 102 BetrVG applicable to the consultation of the works council were applied in practice. This has now been confirmed by the Federal Labor Court: In the event of an ordinary termination, the representative body for severely disabled employees must communicate any reservations with regard to the intended termination in writing within one week at the latest, or within three days in the event of extraordinary termination.

4. Date of the consultation

To date, it was also completely unclear whether the order of involvement of the works council and the representative body for severely disabled employees as well as the approval procedure before the Integration Office has an impact on the effectiveness of the termination.

The Labor Court of the State of Saxony, as the lower court to the current ruling of the Federal Labor Court, overruled the effectiveness of a termination due to a breach of the obligation to consult the representative body for severely disabled employees. It held that is was not sufficient to consult with the representative body for severely disabled employees only after completion of proceedings before the Integration Office and/or the consultation of the works council. In its ruling of August 17, 2017, (Ref. 8 Ca 1122/17), the Leipzig Labor Court had stated as well that a termination was ineffective because the employer did not notify the representative body for severely disabled employees until after the decision of the Integration Office had been received and after consulting the works council. The Hagen Labor Court had also ruled similarly in another case (ruling of March 6 , 2018, ref. 5 Ca 1902/17).

The Federal Labor Court has now made clear: A termination is not ineffective solely because the employer failed to immediately notify the representative body for severely disabled employees of its intention to termination contrary to Section 178 (2) sentence 1 SGB IX or failed to immediately notify it of its intention to stick to its termination decision. Therefore, the Court of Appeal wrongly assumed that the termination was ineffective because the defendant had not involved the representative body for severely disabled employees until after the conclusion of the proceedings before the Integration Office and after consulting the works council.

5. Practical consequences

The clarifications by the Federal Labor Court are to be welcomed. We recommend a concurrent hearing of the representative body for severely disabled employees and the works council with the same content. The deadlines for the statement of the representative body for severely disabled employees are in accordance with Section 102 (1) BetrVG. In accordance with a position paper from the Integration Offices of March 21, 2017, the chronological order of the consultation of the works council and representative body for severely disabled employees and of the approval procedure before the Integration Office is legally irrelevant in terms of the effectiveness of the termination.

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