Jacobsen + Confurius

Prevention procedure pursuant to Section 167 (1) SGB IX now also required during the waiting period for dismissals of severely disabled persons?


Previously, when dismissing a severely disabled person within the first six months of an employment relationship, no special requirements had to be observed apart from consulting a works council and the representative body for severely disabled employees, as the special protection against dismissal only came into effect after six months. This could now change following a decision by the Cologne Labor Court.
On 20.12.2023, the Cologne Labor Court ruled that the implementation of a prevention procedure pursuant to Section 167 (1) SGB IX is necessary for the dismissal of a severely disabled person even during the six-month probationary period pursuant to Section 1 (1) KSchG. Otherwise, the dismissal, as in the present case, would be legally invalid pursuant to Section 134 BGB in conjunction with Section 164 (2) SGB IX. The court of first instance thus ruled contrary to the case law of the Federal Labor Court (BAG), which found that such a procedure did not have to be carried out in another case.
The facts of the case were as follows:
The employee, who was severely disabled due to an early childhood brain disease (degree of disability of 80; individual GdB due to brain damage of 50), filed a complaint against the dismissal of his employer, a municipality, where he had been working for less than six months as an “employee in the building yard”. As part of his probationary period, the plaintiff passed through four different training stations, during the first two of which he had considerable difficulties in carrying out his tasks. However, he received “excellent feedback” for his work in the following stations. However, the defendant then terminated the employment relationship with immediate effect at the end of the probationary period on the grounds that the plaintiff had not proven himself during the probationary period and had not sufficiently integrated into the team.
In the plaintiff’s opinion, this termination is invalid in accordance with Section 134 of the German Civil Code (BGB), as it violates the prohibition of discrimination in Section 164 (2) sentence 1 SGB IX. According to this, an employer may not discriminate against severely disabled employees because of their disability. In order to ensure the best possible equal treatment, Section 167 (1) SGB IX provides for the implementation of a prevention procedure in the event of imminent dismissal, which is intended to identify and eliminate operational difficulties caused by the employee’s disability at an early stage. The plaintiff argued that the failure to carry out the prevention procedure already constituted unreasonable discrimination, as it could have remedied operational difficulties that had arisen precisely because of his disability.
The employer countered that the plaintiff had never requested such a prevention procedure and that the implementation of a prevention procedure during the probationary period was also not required.

The court ruled in favor of the plaintiff and based its decision in particular on the interpretation of Section 164 (2) sentence 1 SGB IX in accordance with EU law.
In the opinion of the court, no provision could be inferred from the law according to which a prevention procedure was only necessary after six months.
In particular, however, the interpretation of Section 164 para. 2 sentence 1 SGB IX in accordance with EU law supports the court’s view.
EU law stipulates that reasonable precautions must be taken to enable severely disabled persons to carry out their occupation. It should also be noted that, according to the United Nations Convention on the Rights of Persons with Disabilities, the right to work of severely disabled persons must be guaranteed and promoted. This also included the implementation of a prevention procedure.
For the legal protection of severely disabled people, Section 22 AGG must also be observed, which provides for a reversal of the burden of proof, which is why the employer must then prove that the principle of equal treatment has not been violated.
According to the court, the failure to carry out the prevention procedure already constituted unjustified discrimination against the disabled person.
In the opinion of the court, the employer would therefore have been obliged to carry out a prevention procedure, which it indisputably did not do.
It was therefore in breach of Section 164 (2) sentence 1 SGB IX, which is why the dismissal was invalid in accordance with Section 134 BGB.
If the case reaches the BAG, it remains to be seen whether the BAG will follow this legal concept. However, due to the strong reference to European law, a referral to the European Court of Justice pursuant to Section 267 TFEU would also be conceivable[1].

Practical tip: The Cologne AG’s judgment creates legal uncertainty. From the employer’s point of view, it is therefore advisable to check as a precautionary measure, even during the probationary period, whether a preventive procedure involving the integration office and the representative body for severely disabled employees should be carried out if the intention is to dismiss a severely disabled employee. Otherwise, the dismissal may be invalid – despite the fact that protection against dismissal and special protection against dismissal does not yet exist.

(with many thanks to stud. iur. Felix Riepelmeier)

[1] Comment by Fuhlrott, NZA-RR 2024, 166

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