In Germany, as of 1 January 2017, various amendments to the law on severely disabled persons came into force. Of particular importance is a new regulation relating to the dismissal of severely disabled employees.
Until the recent changes came into force, before the dismissal of a severely disabled employee the representative body for severely disabled employees had to be heard in accordance with the relevant provisions of the German Social Code Book IX (SGB IX). However, this was not a prerequisite for the effectiveness of the dismissal and therefore rather irrelevant.
Since the beginning of this year, however, the hearing of the representative body for severely disabled employees is a prerequisite for both the dismissal of a severely disabled employee with due notice and without (section 95 para. 2 sentence 3 SGB IX – new version). This means, that a dismissal without such prior hearing is ineffective.
However, if at the hearing, the representative body for severely disabled employees objects to the intended dismissal, the employer can nevertheless proceed with the dismissal. In such a case, the employee may also not claim further interim employment or the like. The legislator has introduced the hearing obligation rather as a mere formal requirement.
However, many questions relating to this new regulation remain. As a precaution, it should first be assumed that similar conditions apply to the content of the hearing of the representative body for severely disabled employees, as in the case of a works council hearing pursuant to the provisions of section 102 of the German Works Constitution Act – BetrVG. In particular, the reasons for the dismissal should be presented in detail. There is also much to suggest that the deadlines set out in section 102 BetrVG for the statement of the works council could be used as guidance for hearings regarding the dismissal of severely disabled employees.
Moreover, considering the unclear wording of the new law, we recommend that the hearing of the representative body for severely disabled employees should take place before the application to the integration office for the necessary approval of the intended dismissal pursuant to the relevant provisions of the SGB IX.