The first effects of the Federal Participation Act: Termination of a severely disabled employee without prior consultation with the representatives of the severely disabled is ineffective.

The Federal Participation Act, which was much discussed last year - including in the media - and is intended to strengthen the rights of severely disabled people, came into force in its first reform stage on January 1, 2017.

The most relevant regulation of this stage of the amendment from a labor law perspective is contained in Section 95 Paragraph 2 Sentence 3 SGB IX (new version). Accordingly, the termination of a severely disabled employee without the prior involvement of the severely disabled representative is invalid. The inclusion of such a legal consequence leads to a significant upgrade of the already existing obligation to participate on the part of the representatives of the severely disabled.
In detail:

1. Formation of the representative body for severely disabled people, tasks of the committee (in particular hearing before a termination is announced)

It should be noted in advance that a representative body for severely disabled people is provided for in accordance with Section 94 Paragraph 1 Sentence 1 SGB IX for all companies and departments that employ at least five severely disabled people on a more than temporary basis.
The task of the severely disabled representative is essentially to enable or facilitate the integration of severely disabled employees. In particular, the committee should monitor compliance with the regulations for the benefit of severely disabled people, apply for measures that serve severely disabled people and transmit suggestions or complaints from severely disabled employees or work towards the implementation of suggestions. In order to fulfill these tasks, the representatives of the severely disabled have numerous rights. In particular, the committee has the right to be informed and heard immediately and comprehensively in all matters that concern a severely disabled person - and therefore also before termination is announced, Section 95 Paragraph 2 Sentence 1 SGB IX.

2. No consultation has so far had no noticeable consequences for the employer

Such an obligation for the representatives of the severely disabled to participate already affected the employer before the introduction of the Federal Participation Act. However, until January 1, 2017, the failure of the representative for the severely disabled to properly participate had essentially no consequences for the employer. In the event that the representative was not involved, the representative could only demand that the employer take part. On the other hand, a violation of the participation obligation did not lead to the invalidity of the termination that had already been given, as the relevant legal provision did not (explicitly) provide for this legal consequence (BAG from June 28, 2007 – 6AZR 750/06).

3. Since January 1, 2017, new legal consequence: invalidity of the termination if the hearing is not held

As of January 1, 2017, the legal situation was significantly tightened from an employer's perspective. Now the procedural errors cannot be “cured” by making up for the participation. Rather, the lack of proper participation by the representatives of the severely disabled leads to the ineffectiveness of the termination notice. As a result, the non-participation of the representatives of the severely disabled has the same legal consequence as the non-participation of the works council in accordance with Section 102 BetrVG.

4. Structure of the hearing procedure unclear

This means that the legal consequences of the committee's failure to participate properly are now clearly regulated by law. However, with regard to the design of the hearing procedure, numerous questions remain unanswered, as the newly formulated regulation does not contain any requirements in this regard. In particular, the following deadlines and procedural regulations are missing:

• When does the hearing have to take place at the latest (before, at the same time or after the hearing of the works council and the involvement of the integration office)?

• How much time must the panel be given during the hearing process?

There is much to suggest that the provisions in Section 102 of the BetrVG should be used (analogously). However, we will have to wait for the first decisions from the labor courts, which would have to deal with this legal question and ensure legal clarity and legal certainty.

5. No impact on other consultation and participation obligations

Finally, it should be made clear that the employer's obligation to involve the representatives of the severely disabled before terminating the termination of a severely disabled person does not affect other consultation and participation procedures. Therefore, in addition to the participation of the representatives of the severely disabled, the works council must also be consulted in accordance with Section 102 BetrVG. Furthermore, the consent of the Integration Office must be obtained in accordance with Section 85 SGB IX before the termination of the employment relationship with a severely disabled employee is announced.