Employment obligation
The legal term employment obligation describes on the one hand the private law obligation of the employer to actually employ the employee within the framework of the employment relationship defined by the employment contract . It is the legal counterpart to the employee's duty to perform. However, the term is also used for the obligation of employers, resulting from Section 154 (1) of Book IX of the Social Security Code (SGB IX), to employ a legally prescribed proportion of severely disabled employees.
Employment obligation under private law
The private law (contractual) employment obligation is derived from the general personality rights of the employee, which gives him the right not only to be paid, but also to be employed in an appropriate form in accordance with the employment contract, since his work is part of the work in addition to simple gainful employment Development of his personality is. For this reason it is recognized that the employer must be prevented from doing anything with the employee's workforce.
A suspension of an employee unilaterally pronounced by the employer is therefore only permitted as a provisional milder means to avoid immediate extraordinary dismissal in view of the employment obligation protecting the employee's personal rights, namely in the case of an important reason .
Public law employment obligation
The public-law employment obligation means that private as well as state employers who have at least 20 jobs have to employ severely disabled people in at least 5% of the jobs ( Section 154 (1) SGB IX). Any fractions of 0.5 or more resulting from the calculation must be rounded up, and rounded down for employers with an annual average of fewer than 60 jobs ( Section 157 (2) SGB IX).
It depends on the total number of jobs available at the employer. An employer with several business units (e.g. branches), each of which has fewer but more than 20 jobs together, is therefore bound by this obligation.
The mandatory quota determines the minimum share. The employer who fulfills his duty to work must therefore further check whether other vacant jobs could also be filled with severely disabled people and if necessary do so ( Section 164 (1) sentence 1 SGB IX). The obligation to work relates to severely disabled people and people of equal status ( Section 158 (1) SGB IX), with holders of miners' pension certificates ( Section 158 (4) SGB IX) also counting towards the compulsory number.
If the stipulated number of severely disabled employees is not employed, a monthly compensation tax must be paid for each missing position in accordance with Section 160 (1) SGB IX . Lower Saxony followed by Baden-Wuerttemberg in terms of the employment rate of severely disabled people who received the “red lantern” from the state authorities.
The employer's obligation to employ exists towards the state. The severely disabled individual cannot derive an individual right to employment from a specific employer from it.
The culpable non-fulfillment of the employment obligation is an administrative offense , which can be punished by the regional directorate of the Federal Employment Agency with the imposition of a fine on the employer ( § 238 Abs. 1 Nr. 1 SGB IX).
Austria
In Austria every 25th employee in a company must be disabled. A compensation tax must be paid to replace disabled people if they are not employed. This equalization tax does not apply to up to 24 employees. Companies that employ disabled people in training receive part of this compensation tax.
See also
literature
- ABC technical lexicon. Employment of severely disabled people . 6th revised edition. Federal working group of integration offices and main welfare offices, Cologne 2018.
