If an employee with a recognized degree of disability of 30 has applied to be recognized as equal to a severely disabled person and has informed the employer of this, the employer is not obliged pursuant to sec. 178(2) sent. 1 of the German Social Code IX, to (precautionarily) inform the Representative Body for Severely Disabled Persons of the intended transfer of this employee, nor to consult it on this matter if a decision on the application for the recognition as equal to a severely disabled person has not yet been made at that time.
In February 2015, a female employee employed at the Jobcenter with a recognized degree of disability of 30 had submitted an application to the Employment Agency for equal treatment with a severely disabled person. She also informed the head of the Jobcenter about this. In November 2015, the employee was transferred to another team for a period of six months. The representative body for severely disabled persons was not involved in this process. In April 2016, the Federal Employment Agency treated the employee as a severely disabled person with retroactive effect from the date of application in February 2015. In the opinion of the Representative Body for Severely Disabled Persons, they should have been informed and consulted prior to implementation as a precautionary measure, especially since the Jobcenter was aware of the employee’s application for equal treatment.
The Federal Labor Court rejected the legal appeal by the Representative Body for Severely Disabled Persons and confirmed the decision of the State Labor Court
In principle, an employer must inform the Representative Body for Severely Disabled Persons immediately and comprehensively in accordance with sec. 178(2), sent. 1, of the German Social Code IX, in all matters affecting an individual or severely disabled person as a group, and must consult it before making a decision. According to sec. 151(1) of the German Social Code IX, this provision applies to severely disabled persons and persons recognized as equal to a severely disabled person.
However, the obligation to participate in the implementation does not exist if the measure triggering the participation rights of the Representative Body for Severely Disabled Persons takes place at a time when a decision on an application for equal treatment has not yet been made.
An obligation on the employer’s part to inform the Representative Body for Severely Disabled Persons about a transposition or other measure and to consult it before the decision on the application for equal treatment does not follow from the retroactive effect of the decision on equal treatment on the day of the application pursuant to § 151.2 sentence 2 of the German Social Code, Book IX.
Under collective law, the representative body for severely handicapped persons is only entitled to participate after the announcement of the equality notice.