(FOPH, Ruling of 12.13.2018, 2 AZR 378/18)

In a very helpful decision for the practice, the FOPH has commented on the procedure for consulting with the representative body for severely disabled persons before dismissals. It is sufficient for the employer to consult the representative body for severely disabled persons before notice of dismissal in accordance with the basic principles applicable to the participation of the works council pursuant to Sec. 102 Works Constitution Act (BetrVG). In particular, the representative body for severely disabled persons must not be involved before the consultation with the works council or before the application to the Integration Office.

An employee who was treated as a severely disabled person defended herself against the ordinary termination of her employment contract through her action against dismissal and objected, among other things, that the representative body for severely disabled persons had been involved too late. The employer first applied for the approval of the Integration Office for the intended dismissal. (Only) after the official approval was received, the employer consulted the works council and finally the representative body for severely disabled persons regarding its dismissal intention and then announced the dismissal. The lower courts granted the unfair dismissal claim, because the participation of the representative body for severely disabled persons such a short time before the notice of termination was no longer "expeditious" with the consequence of the invalidity of the termination. The social justification of the termination was no longer relevant. Following the employer's appeal, the judgment was repealed by the FOPH and referred back to the Court of Appeal for a new hearing and decision.

The decision concerns the understanding of Sec. 178 (2) (3) Social Code (SGB) IX, newly incorporated into the law as of July 1, 2016 (until December 31, 2017: Sec. 95 (2) (3) SGB IX). According to this, the dismissal of a severely handicapped person, which the employer announces without the proper participation of the representative body for severely disabled persons, is irretrievably void. However, the procedure of participation regulated by the legislature is only rudimentary. According to this, the employer is required to (i) promptly and comprehensively inform the representative body for severely disabled persons of all matters affecting a severely disabled person, (ii) to consult and (iii) to notify the decision taken without delay. It is a completely open question at what point in time the participation of the representative body for severely disabled persons is to take place, what are the substantive requirements for the consultation, and when the consultation procedure ends.

The FOPH has used the present case for some important findings:

1. The representative body for severely disabled persons is to be involved before any notice of termination or change with regard to a severely handicapped person or a person treated as a severely disabled person. This also applies to terminations in the six-month notice period under § 1 Termination Protection Act (KSchG). It is not necessary for the termination to be related to the disability.
2. The notification and consultation of the representative body for severely disabled persons must not take place before the consultation with the works council and not before the application to the competent Integration Office. The FOPH does not ask for any sequence for the involvement of the representative body of the severely disabled, the works council and the Integration Office. The decisive factor is that the representative body for severely disabled persons was duly consulted before the relevant decision was taken. The dismissal decision is implemented only through the termination notice, not through the consultation with the works council or the application to the Integration Office (these are mere preparatory measures).
3. The sufficient but also necessary content of the notification of the representative body for severely disabled persons is based on the same principles as the consultation with the works council pursuant to Sec. 102 (1) BetrVG. In particular, the content of the notification is not limited to severely disabled-specific termination arguments. Rather, in addition to the notice of dismissal, the degree of disability of the employee and, if applicable, gender equality and, in principle, other social data (length of employment, age, maintenance obligations) must be reported.
4. The representative body for severely disabled persons must observe the same response deadlines as the works council (Sec. 102 (2) BetrVG analogously). This applies equally to private and public employers. That is, any objections to an intended ordinary termination must be communicated to the employer no later than within one week and those against extraordinary dismissal without delay, but at the latest within three days. An express deadline set by the employer is not required. The consultation procedure is ended when the deadline for comments by the representative body for severely disabled persons has expired or when a statement of the representative body for severely disabled persons has been issued thus concluding the procedure.
5. After the consultation, the employer must immediately notify the representative body for severely disabled persons of the decision taken (Sec. 178 (2) (1), (2) HS SGB IX). If the employer breaches this notification obligation, this does not lead to the ineffectiveness of the termination. A breach of the obligation to notify is not even punishable by a fine.
6. If a termination is ineffective because of the improper participation of the representative body for severely disabled persons according to Sec. 178 (2) (3) SGB IX, the employer can not file for a dissolution petition under Sec. 9 KSchG. Because the provision is, in addition to others, one of the ineffectiveness reasons, which "block" an employer's dissolution petition.

Practical Tip

The participation procedures of the representative body for severely disabled persons and the works council are of equal importance and follow the same rules in terms of content and time. The consultations can be initiated at the same time, before or after the application to the Integration Office, but necessarily before the notice of termination, otherwise the termination is irrevocably void.