«

»

No general participation right for representative of severely disabled people for warning notices

The Higher Regional Labour Court of Baden-Württemberg decided on 7 April, 2017 (docket number 7 TaBV 1/17) that the representative of severely disabled people has no right to be generally involved before a warning notice is issued to a disabled person.

The representative of severely disabled people requested the determination of a general right to be involved in warning notices against severely disabled people and people treated as such. The Labour Court of Reutlingen rejected the claim. The complaint against it before the Higher Regional Labour Court of Baden-Württemberg was unsuccessful.

The Labour Court of Reutlingen ruled that German law does not foresee this right to the extent demanded by the plaintiff. The Higher Regional Labour Court of Baden-Württemberg adopted the arguments brought forward by the Labour Court entirely.

German law stipulates a right of the representative of severely disabled people to be involved without delay and comprehensively in all matters affecting severely disabled people. This obligation does not exist though, if the interests of the severely disabled person are no more affected than of those not severely disabled. The regulation only has the objective to compensate for disability-related disadvantages. If there is no correlation between the warning notice and the disability there is no need for special protection. The representative only has to be involved if the behaviour of the disabled person could be connected to the disability.

German law also obligates the employer to involve the representative of severely disabled people when difficulties arise that could endanger the employment relationship. When a warning notice is given this does not constitute a difficulty within the meaning of these legal provisions. The warning notice does not constitute a danger to the employment relationship but is merely a means to call upon the employee to conduct himself in accordance with the contract.