ArbG Cologne (18th Chamber), judgement of 20.12.2023 - 18 Ca 3954/23
Facts of the Case
The plaintiff, a building yard employee of a municipality born in 1984, defended himself against his Cancellation during the probationary period. He had been employed since January 2023 and received a gross salary of 2,800 euros. The claimant is severely disabled (GdB 80) and worked in several columns. In May, he tore a cruciate ligament while cycling and was therefore unable to work.
The municipality then dismissed him in June 2023 during his probationary period after consulting the staff council, the representative body for severely disabled employees and the equal opportunities officer, who did not raise any objections. The plaintiff considered the dismissal to be in breach of trust and filed an action for unfair dismissal with the Cologne Labour Court. He emphasised that he had received positive feedback, but admitted that he needed more time and routine to make full use of his working abilities due to his disability. He also criticised the fact that he had not been offered (continued) employment in line with his condition.
The local authority, on the other hand, referred to inadequate performance and a lack of team spirit. In its view, there was no discrimination, as it had only become aware of the causes of the disability at a later date and therefore did not need to take proactive action.
The decision: The dismissal is unlawful and the relevant standard is applicable.
In its decision, the Labour Court essentially dealt with two questions. Firstly, whether the employer's behaviour constituted discrimination in accordance with § 164 II S.1 SGB IX, which would mean invalidity according to §134 BGB.
On the other hand, the Chamber wondered whether the central standard (which ultimately decided the legal dispute) §164 II S.1 SGB IX was even applicable. is applicable during an employee's probationary period.
With regard to discrimination pursuant to §134 BGB in conjunction with §164 II S.1 SGB IX, the chamber found that the municipality discriminated against the plaintiff on the basis of his (severe) disability. The court accused the municipality of having from §167 SGB IX towards the plaintiff. According to the judges, this indicated a (rebuttable) presumption that the dismissal was due to the plaintiff's disability. The employer was unable to rebut this presumption, which means that discrimination pursuant to Section 164 II S.1 SGB IX is given.
However, there was a crucial problem for the chamber. According to the case law of the BAG, the obligations arising from Section 167 SGB IX are not applicable during the probationary period. This made the court's decision all the more exciting. Contrary to the BAG, the Chamber was of the opinion that Section 167 SGB IX also applies during the probationary period, which meant that there was nothing to prevent the final decision that the dismissal was unlawful.
Reason: local authority does not involve inclusion office. Union law requires consistent applicability of §164 SGB IX.
The core of the decision is the question of possible discrimination against the plaintiff due to his disability. According to §167 SGB IX, the employer is obliged to inform the responsible inclusion office and the representative body for severely disabled employees at an early stage. This provision is intended to eliminate difficulties that arise when employing severely disabled persons in order to continue the employment relationship as permanently as possible. The chamber found that the local authority had breached these obligations. In the opinion of the court, the municipality should have taken preventative measures when it realised that the integration of the plaintiff was proving difficult and - if lower-threshold measures did not work - should have involved the representative body for severely disabled employees and the integration office as a preventative measure, what has not happened. In addition, a longer and disability-friendly familiarisation phase would have increased the chances of the plaintiff's successful integration in the court's view.
This gave rise to the aforementioned presumption that the dismissal was due to the plaintiff's disability and therefore constituted discrimination within the meaning of Section 164 II sentence 1 SGB IX.
However, the problem of the applicability of the standard was much more complicated.
In this regard, the Chamber developed a detailed and reasoned opinion contrary to the case law of the BAG. In the opinion of the court, this was firstly due to the grammatical and systematic interpretation of the law, which in each case contain no restrictions from which it could be concluded that the application also applies during the probationary period. However, the decisive factor was ultimately a Interpretation in accordance with European law. The (general and abstract) obligation to safeguard the rights of severely disabled persons and to ensure access to employment follows from Art. 5 Directive 2000/78 and Art. 27 para. 1 sentence 2 letter a UN CRPD. Consequently, a restrictive interpretation of Section 164 II sentence 1 SGB IX would hinder the effective enforcement of European law. According to the (in case law developed and recognised) "Effit utile" prohibited. Consequently, in the opinion of the Chamber, in order to ensure effective implementation of European law, the applicability of Section 164 II sentence 1 SGB IX must also be "extended" to the probationary period.
Conclusion and practical tips:
A judgement in which the Cologne Labour Court (courageously) went against the case law of the Federal Labour Court, declaring a dismissal unlawful and thus allowing the severely disabled plaintiff to remain in employment. On the one hand, it shows that employers have a special duty towards their (severely) disabled employees to proactively work towards their continued employment. Even if the employee is "still" in the probationary period. However, it remains to be seen how the further appeal process will unfold and whether this well-founded opinion will continue to be upheld. The case may even be referred to the European Court of Justice in order to clarify any uncertainties under EU law. Furthermore, for disabled and severely disabled employees, it becomes very clear what extensive protection exists in the workplace and how far the prohibition of discrimination can extend.
