Rhineland-Palatinate Regional Labour Court, 20.02.2013, Ref.: 8 Sa 512/12
The health impairment of an employee does not necessarily mean that the entitlement to employment ceases.
In accordance with Section 81 (4) SGB IX, the employer is not only obliged to continue employment, but also to restructure the work organisation if necessary:
[attention]
(4) Severely disabled persons are entitled vis-à-vis their employers to
1. employment in which they can utilise and develop their skills and knowledge as fully as possible,
2. preferential consideration for in-house vocational training measures to promote their professional advancement,
3. facilitation of participation in external vocational training measures to a reasonable extent,
4. the disability-friendly design and maintenance of workplaces, including operating facilities, machinery and equipment, as well as the design of workplaces, the working environment, work organisation and working hours, with particular attention to the risk of accidents,
5. equip their workplace with the necessary technical work aids
[/attention]
These obligations only cease to apply if the employment is unreasonable for the employee or involves disproportionately high costs for the employer.
If the employer does not reorganise the employee's environment accordingly and does not continue to employ the employee, the employee may have a claim for damages against the employer in the amount of the remuneration lost in accordance with Section 280 (1) BGB and Section 823 (2) BGB in conjunction with Section 81 (4) sentence 1 SGB IX. § Section 81 para. 4 sentence 1 SGB IX.
In the above-mentioned judgement, the Rhineland-Palatinate Higher Labour Court had to deal with the employment entitlement of an employee who is equivalent to a severely disabled person and the entitlement to payment of remuneration for periods of non-employment.
Facts of the Case:
Plaintiff was often ill and treated as a severely disabled person
The plaintiff had been employed by the defendant city as a worker in the building yard since 1 January 1988. After considerable sickness-related absences from 2002 onwards, the plaintiff was unable to work from 17 January 2011 up to and including 1 April 2012. On 10 November 2011, the plaintiff was retroactively treated as a severely disabled person.
In March 2012, the plaintiff informed the defendant that he would be back at work from 2 April 2012 and submitted a medical certificate to the defendant.
According to the certificate, the plaintiff was fit for work, but could only carry out light to moderately heavy work
According to the content of this certificate, the plaintiff was fit for work again from 2 April 2012, whereby he was able to carry out light to moderately heavy physical activities, preferably in alternating postures, but heavy lifting and carrying as well as forced spinal postures should be avoided.
As a result, the defendant rejected the work offered by the plaintiff in person.
The plaintiff then filed a complaint with the labour court, seeking actual employment and payment of remuneration for the period from April to August 2012 inclusive.
Defendant refused continued employment, plaintiff filed suit
As part of the proceedings, a specialist occupational health report was obtained. Among other things, it was determined that the plaintiff was still able to work full-time.
Some activities previously carried out were no longer possible, while other activities could have been carried out with work modifications or other work equipment.
On the basis of the results of the occupational health examination, the defendant came to the conclusion that the plaintiff could only be deployed for 371.52 hours per year, corresponding to 23.56 % of a full-time employee.
The plaintiff appealed against the first-instance decision to the Rhineland-Palatinate Regional Labour Court.
Appeal decision of the Rhineland-Palatinate Regional Labour Court:
Regional Labour Court agrees with the plaintiff and orders continued employment
The Rhineland-Palatinate Higher Labour Court agreed with the plaintiff's view and ruled that the admissible appeal was almost entirely justified.
The basis for the plaintiff's application for continued employment is Section 611 (1) BGB in conjunction with Section 81 (4) sentence 1 no. 1 SGB IX. § Section 81 para. 4 sentence 1 no. 1 SGB IX.
In the opinion of the court, the plaintiff's claim to employment was not precluded by the fact that, due to his health impairments, he was no longer able to carry out all of the activities owed under his employment contract in the defendant's building yard.
In the law on severely disabled persons, the inability to perform the contractually owed work does not exclude an employment claim.
According to Section 81 para. 4 sentence 1 no. 1 SGB IX, severely disabled persons and persons with equivalent disabilities are entitled to employment from their employers in which they can utilise and develop their skills and knowledge as fully as possible.
If the severely disabled employee is no longer able to perform the work agreed in the contract due to his disability, this does not automatically lead to the loss of the right to employment.
Despite limited work opportunities, the plaintiff is entitled to continued employment
In order to enable disability-friendly employment, the employer is also obliged to restructure the work organisation in accordance with Section 81 (4) sentence 1 no. 4 SGB IX.
Furthermore, severely disabled persons are entitled to have their workplace equipped with the necessary technical work aids. However, the employer's obligation to employ them only ceases to apply if this is unreasonable for the employee or only involves disproportionately high expenses, Section 81 para. 4 sentence 3 SGB IX.
Applying these principles, it had to be assumed that the defendant could and could reasonably be expected to employ the plaintiff as a full-time worker in the building yard, even though he was no longer able to carry out all the work there for health reasons.
The possibility of the plaintiff working full-time is based on the findings of the occupational physician and her statements in the list of activities she compiled.
The calculation made by the defendant of the annual working time still possible for the plaintiff proved to be incorrect. In this respect, it was incorrect, on the one hand, to take into account only one fifth of the activities still possible and limited for the plaintiff with regard to the number of employees working in the building yard.
Employer is obliged to restructure the work organisation
According to Section 81 (4) sentence 1 no. 4 SGB IX, the employer is also obliged to restructure the work organisation in order to enable the severely disabled employee to be employed in a manner appropriate to their disability.
He must therefore, where necessary, assign lighter work to the severely disabled employee to a greater extent than to the other employees.
A division of the working time required for a certain activity among several employees can only be considered if this activity can only be carried out by several employees together.
Furthermore, it was incorrect to reduce the work that the claimant could perform "to a limited extent" according to the occupational physician by a further 50 % in addition to the one-fifth reduction in time.
The defendant, which has the burden of presentation and proof in this respect, has not submitted any facts which could show that the necessary modifications are unreasonable for the defendant or that equipping the plaintiff's workplace with the relevant technical equipment would involve disproportionate expenditure.
The action for payment is also justified up to a small partial amount of EUR 83.33 gross. The plaintiff would be entitled to payment of the remuneration for the period from 2 April 2012 to 31 December 2012 less the social benefits received during this period.
However, the claim does not arise under the aspect of default of acceptance. As the plaintiff was not able to provide all contractually owed services due to illness, the employer could not be in default of acceptance of the services.
If the employer culpably fails to facilitate the disability-friendly employment of a severely disabled or equivalent disabled employee in accordance with Section 81 para. 4 sentence 1 no. 1 - 5 SGB IX, the employee is entitled to compensation in the amount of the lost remuneration in accordance with Section 280 para. 1 BGB and Section 823 para. 2 BGB in conjunction with Section 81 para. 4 sentence 1 SGB IX. § Section 81 para. 4 sentence 1 SGB IX. This was the case here.
Source: LAG Reinland-Pfalz
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
