Dismissal during the waiting period – Obligation of a “Preventive Procedure” Judgment by the Higher Labor Court of Cologne from September 12, 2024

In addition to this special protection against dismissal, German law provides other safeguards for severely disabled employees aimed at maintaining employment for as long as possible. An example of this is the so-called “Preventive Procedure” under § 167, section 1 German Social Security Code IX (SGB IX), which aims to prevent difficulties in the employment relationship.

Up until now, employers have been benefited in this regard in so far that according to the case law of the Federal Labor Court (Bundesarbeitsgericht – BAG) the special protection provisions for severely disabled employees only apply after the so-called “waiting period,” which is defined as a six-month uninterrupted duration of the employment relationship.

This case law has now become uncertain regarding the “Preventive Procedure” under § 167, section 1, SGB IX. The Higher Labor Court of Cologne decided on September 12, 2024 (Case No.: 6 SLa 76/24) that the “Preventive Procedure” must also be carried out before terminating a severely disabled person still in waiting period.

In the following, we will take a look at this ruling and its practical consequences.

Background

When difficulties arise that could threaten the employment of severely disabled employees, employers must take specific measures as part of the “Preventive Procedure”. In such cases, the employer must involve three key parties: the representative body for severely disabled employees, the Integration Office, and rehabilitation service providers. It is necessary to conduct this process as early as possible in order to determine whether any action needs to be taken to maintain the employment relationship in the long term. If the employer fails to fulfill this obligation, it does not automatically invalidate the dismissal. However, it creates a (rebuttable) presumption that the dismissal was based on discrimination due to severe disability, and therefor invalid.

Until now, case law assumed that the obligation to carry out a “Preventive Procedure” – similar to the special protection against dismissal for severely disabled employees – only applied if the employment relationship with the employee had already lasted more than six months without interruption.

The Higher Labor Court of Cologne has now, as the previous Lower Court already did, deviated from this position.

The Decision of the Higher Labor Court of Cologne

In the underlying case, the employer terminated the employment of a severely disabled employee during the waiting period. A “Preventive Procedure” had not been carried out beforehand. The employee appealed the dismissal to the Labor Court of Cologne and was successful in the first instance.

Although the plaintiff lost on appeal, the Higher Labor Court of Cologne upheld the former decision to the extent that a “Preventive Procedure” must also be conducted for employees who have been employed for less than six months. If this is not done, it is (rebuttably) presumed that the dismissal is due to the severe disability and is therefore invalid. A time limit cannot be derived from the wording of the legal regulation, nor can one be derived from the interpretation of it. Rather, an interpretation of the legal regulation that is consistent with EU law requires its application without any time limitation. In this regard, reference was made to a judgment of the European Court of Justice in 2022, according to which the employer’s obligation to take reasonable and necessary measures to enable disabled employees to pursue a vocational activity applies even during the waiting period.

The claim was ultimately unsuccessful on appeal only because the defendant employer managed to rebut the presumption that the dismissal was due to the severe disability.

This decision is not yet legally binding. The Higher Labor Court of Cologne has allowed an appeal to the BAG. It remains to be seen whether the BAG will maintain its previous stance or follow the decision of the Higher Labor Court Cologne.

Practical advice

Until the BAG makes a decision, there will be a degree of legal uncertainty. It remains the case that special protection against dismissal, in the strict sense, does not come into effect until the waiting period has passed. However, this is no longer undisputed with regard to the obligation to carry out the “Preventive Procedure”. If employers want to be on the safe side, it can only be recommended that they also initiate and, if possible, complete a “Preventive Procedure” as a precautionary measure before dismissing severely disabled employees within the waiting period. In particular, employers should not rely on a successful rebuttal of the presumption effect in the event of a case.

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