News - Germany

Germany - June 2012

Establishing the identity of protected severely disabled employees

An employee who replied untruthfully to a question from his employer as to whether he was severely disabled could not later rely on that disability in a claim arising out of his selection for redundancy. The plaintiff, who had a degree of severe disability of 60%, had been engaged under a temporary employment contract lasting from 1 November 2007 until 31 October 2009. On 8 January 2009, the defendant was appointed temporary insolvency administrator of the assets of the employer. During the commencement of insolvency proceedings, in order to complete and review the data available to him and others, the defendant requested details from employees in the form of a questionnaire as to whether any had a severe disability or an equivalent status. The plaintiff replied saying he did not have a severe disability. After the insolvency proceedings had commenced, the defendant, being the insolvency administrator, terminated the plaintiff’s employment on 26 May 2009, effective 30 June 2009.

The plaintiff, asserted that he was severely disabled in his statement of claim dated 9 June 2009, in which claimed the notice of termination of employment of 26 May 2009 was ineffective as it was not approved by the Integration Office as would be required for the termination of a severely disabled employee. The Labour Court shared this opinion and allowed the claim. However, the Federal Labour Court rejected the claim on the basis that the plaintiff could not rely on disabled persons’ protection against unfair dismissal as he had responded untruthfully to the question of whether he was severely disabled.

The plaintiff’s appeal at the Sixth Senate of the German Federal Labour Court was unsuccessful. according to section 1 par. 3 of the Protection of Unfair Dismissal Act ("KSchG"), there is a requirement for severe disability to be taken into consideration when selecting employees to be dismissed and there is special protection against unfair dismissal for such employees afeer six months’s service. There is also a corrspndiong right for an employer to ask employees if they are severely disabled. Severely disabled employees withe requisite service cannot be dismissed without the prior consent of the Integration Office. Where an employee responds untruthfully to the employer’s requests for information to enable him to comply with this law the employee should not then be able to bring a claim where the empoyer has acted on the basis of the information provided.

Commentary

It is of course important that employers can properly identify svcelry eisabled employees in order to acquit their legal obligations on termination. The Federal Labour Court’s decision upholds the commence sense view that an employee should not be able to create a liability in this circumstance by providing false information.

German Federal Labour Court, judgment dated 16 February 2012, file reference 6 AZR 553/10

For further information or to discuss any of the issues raised, please contact Stefanie Andrelang on 0049 89 2422300.