Special protection against dismissal for severely disabled people
The special protection against dismissal for severely disabled people according to Sections 168 to 175 SGB IX is a core part of the law on severely disabled persons (Part 3 SGB IX) in Germany and regulates that persons with severe disabilities enjoy extended protection against dismissal .
Legal Regulations
scope
Employees only enjoy special protection against dismissal under Section 168 of Book IX of the Social Code if they are severely disabled people under Section 2 (2) of Book IX of the Social Code. According to this, people are severely disabled if they have a degree of disability of at least 50. In addition, people with a degree of disability of at least 30 who, according to Section 2 (3) SGB IX, have been treated as severely disabled persons by the Employment Agency enjoy the special protection against dismissal .
According to Section 173 (3) SGB IX, the provisions on protection against dismissal do not apply if the person's status as a severely disabled person is not proven at the time of termination. Proof is available if the pension office or the competent authority under state law has determined a degree of disability of at least 50 or an equality notification from the employment agency is available. It is not necessary to present the notification to the employer in advance. Protection against dismissal also exists if the severe disability is obvious.
The provisions of the special protection against dismissal according to Section 173 (3) SGB IX do not apply , even if the pension office or the competent authority under state law was unable to make a determination after the deadline of Section 152 (1) sentence 3 SGB IX due to a lack of cooperation . The special protection against dismissal applies according to the case law of the Federal Labor Court under the following conditions:
- An application for equality or for the establishment of severely disabled status must have been submitted. This must be done at least three weeks before the notice of termination is received.
- The pension office or the competent authority under state law or the employment agency did not make a decision within the three-week period. This is not only due to a lack of cooperation on the part of the applicant.
- If the pension office or the competent authority under state law has made a determination in the first instance about a GdB below 50 or a negative decision by the employment agency, the employee can also claim special protection against dismissal if an appeal is lodged against the first instance decision have been, ie it is not yet final.
Approval of the integration office
The termination of the employment relationship is not subject to approval, e.g. B. by
- an amicable termination agreement,
- termination by the severely disabled person himself or
- Deadline for a fixed-term employment relationship.
The termination of the employment relationship of a severely disabled person, on the other hand, requires consent if it takes place without notice of termination in the event of occupational disability or temporary disability, partial and full reduced earning capacity (see extended protection against termination, § 175 ). The protection against dismissal in Part 3 SGB IX is an additional protection. In addition, the severely disabled person, like every employee, has the general protection against dismissal according to the Employment Protection Act (KSchG). The dismissal procedure according to SGB IX precedes the labor court dismissal procedure according to the KSchG. The termination can only be pronounced after the integration office has approved it. The employee can then contest the termination. According to § 4 sentence 1 KSchG, all reasons that could lead to the legal ineffectiveness of the termination must be asserted within three weeks of receipt of the termination by filing a complaint with the labor court. According to the regulation in § 4 sentence 4 KSchG, in cases in which the consent of the integration office is required, the period of action does not start until the consent of the integration office has also been served on the employee.
If the employer does not know the need for consent due to a lack of knowledge of the severely disabled status of the employee and does not initiate proceedings at the integration office, the view can be taken that the period of action in this case does not start and the right to sue can only be forfeited by the passage of time. For reasons of legal certainty, however, it is recommended that in these cases all reasons that could lead to the legal ineffectiveness of the termination, including in particular the lack of consent from the integration office, are asserted within three weeks of receipt of the termination with the dismissal protection suit.
If the severely disabled person waives the special protection against dismissal, for example by terminating himself or by concluding a termination agreement, or if he concludes a settlement agreement, he may have to accept financial disadvantages after leaving the company, such as: B. a blocking period for the payment of unemployment benefits.
Exceptions
Section 173 of Book IX of the Social Code contains some exceptions to the necessary consent from the Integration Office in the event of termination by the employer . According to this, the termination of a severely disabled person within six months of the existence of the employment relationship does not require consent (Section 173 (1) No. 1 SGB IX). It is sufficient for the employer to give notice of termination within the six-month period, even if the notice period ends thereafter. Under certain conditions, dismissals by severely disabled people who are socially protected are also not subject to approval (Section 173 (1) No. 3 SGB IX); also terminations of the employment relationships mentioned in Section 173 Paragraph 1 No. 2 and Paragraph 2 SGB IX.
Economic effect
The primary aim of the regulations is that severely disabled people are less likely to be affected by redundancies for operational reasons . A study by Dieter Sadowski in 1988 showed that this goal was not achieved: The risk of dismissal is comparable for disabled and non-disabled people.
In contrast, other sources say that it makes dismissals more difficult and that there is therefore a lower risk for severely disabled people to become unemployed . Conversely, however, protection against dismissal is an obstacle to employment. According to the statistics of the Federal Employment Agency, disabled people are more difficult to place and more often long-term unemployed.
Web links
Individual evidence
- ↑ Federal Working Group of Integration Offices and Main Welfare Offices (ed.): ABC Fachlexikon. Employment of severely disabled people. 6th revised edition, Cologne 2018.
- ↑ Dieter Sadowski and others: Who employs severely disabled people ?; in: Zeitschrift für Betriebswirtschaft, 1988, 58; quoted from: Bernhard Gahlen, Helmut Hesse, Hans Jürgen Ramser (eds.): Unemployment and ways of overcoming it, ISBN 978-3-16-146665-6 , 1996, page 88, online
- ^ Franz Egle: Arbeitsmarktintegration, 2005, ISBN 3-409-12564-7 , page 387, online
