The dismissal of a severely disabled person can be discriminatory in the first six months of the employment relationship according to § 164 para. 2 SGB IX and thus be ineffective if the employer applies the prevention procedure according to § 167 para. 1 SGB IX has not performed.
The plaintiff with a degree of disability of 80 severely disabled persons has been employed by the defendant municipality as an “employee in the construction yard” since 01.01.2023. The plaintiff was deployed between 02.01. and 14.04.2023 in various columns of the construction yard and was unable to work from the end of May. On 22.06.2023, the employer announced the employment relationship as of 31.07.2023.
The ArbG has decided that the termination against the prohibition of discrimination of § 164 Abs. 2 SGB IX violates and is thus ineffective. The employer is – contrary to previous case law of the BAG – also during the waiting period of § 1 Abs. 1 KSchG obliges a prevention procedure according to § 167 para. 1 SGB IX. This results in the interpretation of the standard in accordance with EU law. § 167 Abs. 1 SGB IX stipulates that, as early as possible as a preventive measure, the representatives of the severely disabled and the Integration Office are to be involved if difficulties arise in the employment relationship that can lead to the endangerment of this relationship. The employer did not do this here. She would have, when she noticed that the severely disabled plaintiff during the waiting period – as she claims – did not prove or did not fit into the team and did not live up to their expectations, take preventive measures and, if necessary, have to engage the representatives of the severely disabled and the Integration Office in a preventive manner. (ArbG Cologne, judgment of 20.12.2023 – 18 Ca 3954/23; nrkr.)
