Cologne Labour Court - Judgment of 19 November 2025 - Ref. 18 Ca 6344/24
The first six months of an employment relationship are considered a probationary period under labour law. Dismissals are easier during this period, as the Protection against Dismissal Act does not yet apply. The judgement of the Employment Court Cologne, 02.07.2014, Case No.: 14 Ga 65/14 of 19 November 2025 clearly shows, however, that even during the waiting period, employers are not exempt from special duties to protect and act towards employees with severe disabilities or equivalent status.
The court deals with the question of whether and to what extent prevention obligations under SGB IX already exist before the end of the waiting period with remarkable clarity - and expressly positions itself against the most recent case law of the Federal Labour Court.
Prevention procedure even before the end of the six months
The core of the decision is the finding that a prevention procedure pursuant to Section 167 (1) SGB IX must also be carried out during the waiting period under Section 1 (1) KSchG, as soon as personal, behavioural or operational difficulties arise in the employment relationship that jeopardise the continued existence of the employment relationship.
The Cologne Labour Court thus expressly contradicts the BAG (judgement of 3 April 2025 - 2 AZR 178/24). In the opinion of the court, Section 167 (1) SGB IX does not contain any time restrictions. Neither the wording nor the system or the purpose of the law justify limiting the provision to employment relationships after the waiting period has expired.
Early job security as the purpose of the law
The court emphasises that Section 167 (1) SGB IX is precisely the Stabilising employment relationships as early as possible serves. Particularly in the initial phase of an employment relationship, severely disabled people often have an increased need for coordination, support and adaptation of working conditions.
An interpretation according to which the prevention procedure should only take effect when the general Protection against dismissal already exists would defeat this purpose. In the opinion of the Chamber, the waiting period is not the period of least need for protection, but rather the period of particular need for protection.
Involvement of the representative body for severely disabled employees from day one
In addition to the prevention procedure, the court clarifies that the information and consultation obligations pursuant to Section 178 (2) sentence 1 SGB IX also apply from the start of the employment relationship. As soon as a measure affects the individual severely disabled employee or a connection with their disability cannot be ruled out, the representative body for severely disabled employees must be involved.
In the case decided, this involvement was delayed and inadequate. Although the court ultimately left open whether this constituted an independent breach of law, it clearly emphasised that earlier and more comprehensive involvement of the representative body for severely disabled employees would have been appropriate.
Breach of duty yes - termination nevertheless effective
The decision is particularly nuanced when it comes to the legal consequences. Although the Cologne Labour Court affirms a breach of the obligations under Section 167 (1) SGB IX, it declares the termination not for ineffective.
In the opinion of the Chamber, an overall assessment of the circumstances of the individual case is decisive. Although a breach of duty generally indicates discrimination due to disability, this does not automatically lead to the termination being invalid. The decisive factor is whether it is predominantly likely that the termination because of of the disability.
Professional suitability deficiencies as a fundamental reason for termination
In the specific case, the court came to the conclusion that the dismissal was not due to the disability, but due to professional aptitude deficiencies. In the opinion of the court, the health impairments described by the plaintiff had no recognisable connection to the deficits in the content of his work that were the subject of the complaint.
According to the court's assessment, even if a preventative procedure had been carried out, it would not have been overwhelmingly likely that the dismissal could have been avoided. This meant that the required causality between the breach of duty and the decision to dismiss was lacking.
No automatic ineffectiveness, but increased risk for employers
The judgement makes it clear: the violation of prevention and participation obligations does not lead schematically to the invalidity of a waiting period termination. However, it does significantly increase the legal risk for the employer.
Where a connection between disability and performance problems seems even possible, the omission of a prevention procedure can act as a strong indication of discrimination - with the consequence of a shift in the burden of proof in accordance with Section 22 AGG.
Significance for practice
The decision of the Cologne Labour Court has considerable practical implications:
- Prevention obligations pursuant to Section 167 (1) SGB IX also apply during the waiting period.
- Employers must check at an early stage whether difficulties could be disability-related.
- The representative body for severely disabled employees must always be involved from the outset.
- Breaches of duty can make a dismissal contestable, even if the KSchG does not yet apply.
With the authorised appeal, a supreme court clarification of this central question is foreseeable.
Conclusion: waiting time does not mean a legal vacuum
The judgement of 19 November 2025 is a clear signal: the waiting period under the Protection against Dismissal Act does not release employers from their obligations under social law and discrimination law towards severely disabled people.
Even if the dismissal was upheld in the specific case, the decision sets clear guidelines for practice - and strengthens the preventative function of the law on severely disabled employees from the very first day of the employment relationship.
