If the workplace of a severely disabled person is no longer available, the claim to employment under Section 81(4) SGB IX Social Code old version (now Section 164(4) SGB IX) will not come into effect if there is no possibility of continued employment.
Federal Labor Court, May 16, 2019 – 6 AZR 329/18
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The severely disabled plaintiff was employed by the insolvent employer for many years, with the employment relationship subject to special protection against dismissal under collective bargaining agreements. The employer terminated the employment on operational grounds in the context of the insolvency proceedings that were initially conducted under the company’s own administration, after the employer had concluded a reconciliation of interests including a list of names with the works council in accordance with Section 125(1) Insolvency Code. The list included the plaintiff’s name, whose workplace did no longer have to be occupied due to redistribution of the remaining tasks. The auxiliary activities, which the plaintiff performed, had now been assumed by the remaining specialists also. The plaintiff is unable to perform other activities. Nevertheless, he considered the notice of dismissal ineffective and referred to the special protection against dismissal under collective bargaining agreements and to the claim to employment under Section 81 (4) SGB IX old version (now Section 164 (4) SGB IX).
With its judgement, the Federal Labor Court upheld the decision of the lower instances, which had rejected the complaint for protection against dismissal. In accordance with Section 164(4) SGB IX (until December 31, 2017: Section 81(4) SGB IX old version), in an existing employment relationship, severely disabled persons may require from their employer the performance of the employment relationship corresponding to their health situation up to the limits of reasonableness. In the opinion of the Federal Labor Court, this does not entitle severely disabled persons to an employment guarantee, however. The employer may make a business decision, by which the job of the severely disabled person is eliminated due to an organizational change. The severely disabled person’s special claim to employment must then only be taken into account when examining opportunities for continued employment in another vacant job. In the opinion of the Federal Labor Court, the dismissal at issue terminated the employment. The special protection against dismissal under collective bargaining agreements has no effect pursuant to Section 113 sentence 1 Insolvency Code. In the opinion of the Federal Labor Court, there are no constitutional objections against this either. The claim to employment from Section 81(4) SGB IX old version (now Section 164(4) SGB IX) does not come into effect due to the lack of suitable opportunities for further employment. The employer was not obligated to create or keep a job for the plaintiff, which is no longer needed according to the employer’s organizational concept.
The decision of the Federal Labor Court is to be welcomed. If a severely disabled person can no longer be employed, dismissal under observation of the notice period must be permissible. A strict standard is certainly applied when examining the loss of the workplace and the lack of suitable employment options. It needs to be considered that according to Section 168 SGB IX, the prior consent of the Integration Office is necessary for the dismissal of a severely disabled person.