Federal Labour Court specifies requirements for termination of employment due to insufficient fitness

1. The Problem
There are many jobs that require excellent mental or physical fitness. If this fitness is no longer maintained, the question often arises as to whether the employment relationship can still be maintained. This was also the problem in a case decided by the Federal Labour Court (docket number: 7 AZR 292/17) on 17 April 2019.
The plaintiff had been employed as a stewardess for more than 20 years until an aeromedical institute determined that she was no longer fit to fly. According to the collective bargaining agreement, the employment relationship in this case ends automatically (at the latest) 6 months after the diagnosis. Her employer – an airline – therefore informed the stewardess that her employment relationship would end at the end of the year 2015. The former stewardess demanded to continue to be employed because there were other, open jobs in the company that she could take over.

2. The decision
The Federal Labour Court (BAG) decided in favour of the plaintiff. First it pointed out that the clause of the collective bargaining agreement according to which the employment should end automatically if the employee was no longer fit to fly had to be understood in a special way. Therefore, the employment relationship only ends automatically if there are no other employment opportunities in the company.
However, the BAG also outlined under what circumstances the lack of fitness of an employee can lead to termination of the employment relationship. Two main points are therefore to consider. First, (i) the employment contract or collective agreement must include a clause linking the employee’s fitness to the validity of the employment contract. If the employee expresses a wish to continue working in another position in the company, the employer must then (ii) determine whether other employment opportunities exist. To do this, the employer must carry out an operational integration management. If he does carry out this management correctly, without finding new job opportunities, he can claim in court that there are no possibilities for continued employment without explaining this in concrete terms. In contrast, the employee would have to specifically explain how he envisages further employment in the company. Only then does the employer have to explain why the continued employment opportunities mentioned by the employee cannot be considered.
Since in the underlying case the airline failed to involve the employee representatives in the operational integration management of the former stewardess, this procedure was ineffective. Therefore, the employer could not invoke the reduced burden of proof, but would have to assess the alternatives that were conceivable or had already been mentioned by the employee and explain in concrete terms why all these possibilities were not suitable job opportunities for the plaintiff.
The airline’s arguments that there is no question of continued employment since the employee cannot work at night for health reasons and is not sufficiently qualified for other vacant jobs, were rejected by the court as insufficient. For this reason, the court ruled that the employment relationship could not end automatically because it could not be assumed that there was no longer any possibility of continued employment.

3. The impact
The decision will have major implications in several respects. The most important consequences, however, are in the area of operational integration management. Even if this procedure is not an official prerequisite for the validity of a dismissal, it is becoming more and more important in the question of the burden of proof. However, as the court stated in its decision, the implementation of such an integration procedure is by no means an easy task. The decision makes clear that employers should (i) ensure that employee representatives (usually the works council) are involved in the discussion with the employee. In addition, (ii) ensure that the employee is fully informed about operational integration management. This information must also be provided if the employee does not wish to participate at all in operational integration management, since this refusal is only taken into account later before the court if the employee was aware of the consequences it would have.