Dismissal of Severely Disabled Employees Only Valid After Participation of Representatives

Employees who suffer from a severe disability may no longer have their employment contracts terminated by their employer unless such dismissal proposal saw participation by the Severely Disabled Employees Council. This strengthening of the rights of severely disabled employees became valid on 30 December 2016, as the German Social Security Code IX (SGB IX) saw a change to section 95. At first glance, the change only remains valid until 1 January 2018, yet a major reform of the Social Security Code IX leads to the preservation of the newly introduced principle in section 178.

Employers thus need to be prepared for different legal consequences in the case of dismissals issued without allowing for the participation of the Severely Disabled Employees Council. Prior to the change, failure to arrange a hearing of this council had no consequences for the employer, which stripped the council of an important role. By voiding any such dismissal made without prior hearing in accordance with section 134 of the German Civil Code, the federal legislature supports the council’s rights in representing severely disabled employees.

In order to avoid negative consequences such as lawsuits and the delay of necessary business decisions, employers are strongly advised that any dismissal be made only after having discussed the subject matter with the council. Other ways in which a severely disabled employee may leave a company remain unchanged, such as reaching a mutual agreement or a termination of employment issued by the employee himself.