Waiting period termination of employment relationship with a severely disabled person only after prior prevention procedure?

Employers beware: More and more first-instance decisions are being issued by the labor courtsaccording to which a dismissal of a severely disabled employee even during the probationary or waiting period can be invalid if no so-called prevention procedure was carried out beforehand.

The labor court Freiburg (Breisgau) ruled on 4 June 2024 (Ref.: 2 Ca 51/24) that employers are also entitled to take preventive measures in the first six months of employment if difficulties arise in the employment relationship with a severely disabled person should be obliged to carry out a prevention procedure in accordance with Section 167 (1) SGB IX. A breach of this is intended to constitute prohibited discrimination on the grounds of severe disability and lead to the invalidity of a waiting period dismissal. This was also the view of the Cologne Labor Court in its ruling of 20.12.2023 (Ref.: 18 Ca 3954/23).

This development is remarkable and also deviates from the previously prevailing case law of the Federal Labor Court (see BAG, judgment of 21.04.2016, Ref: 8 AZR 402/14). One of the questions that arises for HR practice is how an employer (in particular shortly before the end of the waiting period of six months) can still issue an effective waiting period notice of termination if it must first carry out a time-consuming prevention procedure, possibly even involving the integration office.

As the definition of "difficulties arising" is also interpreted broadly by the Freiburg Labor Court according to the reasons for the judgment that have now been published, it is basically almost impossible to implement a waiting period termination without a prevention procedure in a legally secure manner.

Even if the protection of severely disabled employees against dismissal is an important and also sensible concern in labor law is an important and sensible concern in employment law, this may do a disservice to the chances of hiring a severely disabled applicant. Until now, employers have rarely shied away from the "risk" of hiring a severely disabled person, at least for the probationary period. The removal of the special protection against dismissal from the probationary and waiting period is in essence a measure to promote employment for severely disabled people.

The appeal was expressly allowed by the Freiburg Labour Court, which may lead to further clarification by the regional labour courts in the coming months. HR managers should keep an eye on this.