Equality with severely disabled people

from Wikipedia, the free encyclopedia

Through equality with severely disabled people , which is based on a decision by the employment agency in Germany , disabled people with a degree of disability (GdB) of 30 or 40 can receive certain rights that generally only exist from a GdB of 50.

This equality occurs only upon application and if the legal requirements according to Section 2 (3) SGB ​​IX are met . Accordingly, people with a GdB of less than 50, but at least 30, can be equated with severely disabled people (i.e. people with a degree of disability of at least 50). The prerequisite for this is that they cannot keep their job without this equality or that they need the equality to get a new, suitable job.

Jurisdiction

While the GdB is determined by the pension office , the local employment agency (AA) is responsible for granting equality with severely disabled people . The AA is bound by the findings of the pension office and does not carry out its own medical examinations. The AA decides on equality on application by notification . If equality is rejected, the objection committee in accordance with Section 203 SGB ​​IX at the locally responsible regional directorate of the Federal Employment Agency decides in any objection proceedings . If the objection is not (completely) remedied, legal recourse to social justice is given.

Purpose of equality

Equality among employees

While severely disabled people enjoy extended protection against dismissal (termination requires the consent of the integration office in accordance with Section 168 SGB ​​IX), this is not the case for disabled, but not severely disabled people (those with a GdB of under 50). If an employee who is subject to social insurance and has a GdB of 30 or 40 is threatened with dismissal due to disability, he may therefore be treated on an equal footing with severely disabled people. Due to equality, the employer also needs the consent of the integration office to terminate an employment relationship with a disabled person. Pursuant to Section 151 of Book IX of the Social Code, however, equal treatment does not mean that the person of equal status receives the additional leave provided for severely disabled people under Section 208 of Book IX of the Social Code. Civil servants can also, under certain conditions, be treated on an equal footing with a severely disabled person, especially if they are threatened with dismissal due to disability / illness or retirement. In principle, equality has an effect on the date of application. According to the current case law of the Federal Labor Court , the termination of an equal person does not require the consent of the integration office if the equal treatment was not applied for at least three weeks before the termination.

The Hessian State Social Court ruled on June 19, 2013 that an application for equality can also be made if an employed person in the public service could not be employed without the equality.

Equality for the unemployed

Unemployed people with a GdB of 30 or 40 can be treated as equivalent if they need the same treatment to get a job. The chances of hiring an equal person can be higher if the potential employer does not meet the severely handicapped quota according to § 154 SGB ​​IX, to which equals are also counted. On the other hand, equality can also have negative effects on employment opportunities if the employer shies away from the extended protection against dismissal of the equals. It can therefore make sense for the Employment Agency to first give an assurance that equality will then take place if an employer wishes this for the recruitment. For example, the assurance given does not have to be disclosed in an interview.

Guarantee abolished

According to the Federal Labor Court of February 16, 2012, Az. 6 AZR 553/10 (Disability-related Discrimination), employers may not ask applicants about severe disabilities or equality in the application process or in the first six months. In this respect, the assurance also has no constitutive effect. But this is important for applications for the public service according to § 164 SGB ​​IX as well as for disadvantage compensation according to § 165 Abs. 1 SGB IX and § 178 Abs. 2 Satz 3 SGB IX. In the specialist literature, this instrument of assurance instead of equality against the will of disabled people and in general has been heavily criticized for years because it is not legally equivalent. This legally highly questionable, unjustifiable practice and which the BAG also sees as not being equivalent , has since been abolished again by the Federal Employment Agency in 2017, as the supposed advantages of merely assured equality compared to approved equality do not exist.

Individual evidence

  1. ↑ BAG, 2 AZR 217/06.
  2. ↑ Hessisches LSG, June 19, 2013, AZ L 6 AL 116/12.
  3. ↑ Hessisches LSG, July 10, 2007, L 7 AL 61/06 (not legally binding)
  4. ↑ BAG, January 27, 2011, 8 AZR 580/09, Rn. 35
  5. ↑ Order of the BA of May 22, 2017