Cologne Labor Court (18th Chamber), judgment of December 20, 2023 - 18 Ca 3954/23
Facts:
The plaintiff, a municipal building yard employee born in 1984, fought his dismissal during his probationary period . He had been employed since January 2023 and received a gross salary of €2,800. The plaintiff is severely disabled (GdB 80) and worked in several shifts. In May, he tore his cruciate ligament while cycling and was therefore unable to work.
The municipality subsequently terminated him in June 2023 during his probationary period after hearing from the staff council, the representative of severely disabled persons, and the equal opportunities officer, who raised no objections. The plaintiff considered the termination to be in breach of trust and filed a wrongful termination suit with the Cologne Labour Court. He emphasised that he had received positive feedback, but admitted that, due to his disability, he needed more time and practice to fully utilise his work abilities. He also criticised the fact that he had not been offered (continued) employment appropriate to his disability.
The municipality, however, cited inadequate performance and a lack of teamwork skills. It argued that discrimination did not occur because the causes of the disability had only become known later, and therefore proactive action was not necessary.
The decision: The termination is unlawful and the relevant standard applies.
In its decision, the labour court essentially addressed two questions. First, whether the employer's conduct constituted discrimination under Section 164 II S.1 of the Social Code (SGB IX), which would render it invalid under Section 134 of the German Civil Code (BGB).
On the other hand, the Chamber wondered whether the central norm (which ultimately decided the legal dispute) §164 II S.1 SGB IX is even applicable during an employee's probationary period.
With regard to discrimination pursuant to Section 134 of the German Civil Code (BGB) in conjunction with Section 164 II S.1 of the German Social Code (SGB IX), the chamber found that the municipality had discriminated against the plaintiff on the basis of his (severe) disability. The court accused the municipality of violating its obligations to the plaintiff under Section 167 of the German Social Code (SGB IX). In the judges' opinion, this indicated a (rebuttable) presumption that the dismissal was due to the plaintiff's disability. The employer was unable to refute this presumption, meaning that discrimination pursuant to Section 164 II S.1 of the German Social Code (SGB IX) was present.
However, the chamber faced a crucial problem. According to the case law of the Federal Labour Court (BAG), the obligations arising from Section 167 of the Social Code (SGB IX) are not applicable during the probationary period. This made the court's decision all the more intriguing. Contrary to the BAG's ruling, the chamber held that Section 167 of the SGB IX also applies during the probationary period, meaning there was nothing to prevent the final decision that the termination was unlawful.
Reason: The municipality does not involve the inclusion office. Union law requires the consistent application of Section 164 of the Social Code (SGB IX).
The core of the decision is the question of possible discrimination against the plaintiff on the basis of his disability. According to Section 167 of the Social Code Book IX, the employer is obliged to inform the responsible inclusion office and the representative of severely disabled persons at an early stage. This provision is intended to eliminate difficulties that arise when employing severely disabled persons in order to be able to continue the employment relationship as permanently as possible. The chamber found that the municipality violated these obligations. In the court's opinion, when the municipality noticed that the plaintiff's integration was proving difficult, it should have taken preventative measures and - if lower-threshold measures were unsuccessful - should have involved the representative of severely disabled persons and the integration office as a preventative measure, which did not happen . In addition, the court considered that a longer acclimatisation phase that was fair to people with disabilities would have increased the chances of the plaintiff's successful integration.
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 S.1 SGB IX.
However, the problem of the applicability of the standard was much more complicated.
In this regard, the chamber developed a detailed reasoned opinion contrary to the case law of the Federal Labour Court. In the court's view, this arises primarily from the grammatical and statutory interpretation, both of which contain no restrictions , from which it could be concluded that the application also applies during the probationary period. Ultimately, however, an interpretation that is consistent with European law was decisive. Article 5 of Directive 2000/78 and Article 27, paragraph 1, sentence 2, letter a of the UN CRPD impose a (general and abstract) obligation to protect the rights of severely disabled people and to ensure access to employment. Consequently, a restrictive interpretation of Section 164 II, sentence 1 of Book IX of the Social Code would hinder the effective enforcement of European law. This is prohibited under the "effit utile" (developed and recognised in case law). Consequently, in the Chamber's view, in order to ensure effective implementation of European law, the applicability of Section 164 II S.1 SGB IX must also be "extended" to the probationary period.
Conclusion and practical tips:
A ruling in which the Cologne Labor Court (courageously) defied the case law of the Federal Labor Court (BAG), declaring a dismissal unlawful and thus enabling the continued employment of the severely disabled plaintiff. On the one hand, it demonstrates 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 their probationary period. However, it remains unclear how the further appeal process will unfold and whether this well-founded opinion will continue to hold. The case may even be referred to the European Court of Justice to clarify any uncertainties under EU law. Furthermore, it becomes very clear to disabled and severely disabled employees just how extensive workplace protection exists and how far-reaching the prohibition of discrimination can be.
