Introduction
Severe disability: consequences for employers
Enquiring about severe disability
Federal Labour Court ruling
Comment
Under German law, there must be no discrimination against people with disabilities, who should be integrated in the workplace as far as possible. A statutory quota has been in place for many years, which requires each employer to employ a specific number of disabled people. However, employing a disabled person can give rise to further rights which the employer must then fulfil. There is also much discussion about how the employer is expected to know whether it is employing a candidate or employee with disabilities – due to the definition of 'disabilities' in German law, these are often not visible or noticeable. Can an employer simply enquire about a disability or would this be a breach of the anti-discrimination ban? This update examines the legal situation for both the employer and the severely disabled employee.
Severe disability: consequences for employers
A person is classed as 'severely disabled' if he or she is permanently and severely impaired with a 50% disability and cannot fully participate in society and at work due to a physical, mental or emotional handicap. This is also the case if the person is not impaired by a 50% disability, but is disabled to the extent that he or she is placed on a par with individuals with a 50% disability. German employment law aims to identify and eliminate disadvantages for severely disabled people. Social Security Code IX contains provisions on how to deal with severely disabled people in the workplace.
Being able to work is an important aspect of leading an independent life. Sections 71 and following of the code state that all employers in Germany must employ a quota of 5% of disabled people. Employers must either fulfil this obligation or pay the government an equalisation levy. This levy depends on the annual average quota of disabled employees and amounts to between €105 to €260 a month for each unfilled mandatory position for people with severe disabilities. Many employers fulfil the statutory quota and thus contribute to integrating disabled people into the workplace.
However, several additional obligations then lie ahead for employers, which arise even before an employment contract is signed. If a minimum of five disabled persons or persons of equivalent status are continuously employed at a company, a representative for severely disabled employees must be designated pursuant to Section 94 of the code. If the employer wishes to fill a vacancy, it must first ascertain whether the position can be filled by a severely disabled person, in accordance with Section 81(1) of the code. Generally, this is always the case, unless an individual's disability would completely rule out the possibility of him or her carrying out the job – for example, a wheelchair user would be unable to operate a forklift truck). If a severely disabled person applies for a position, his or her application must be discussed with the company's representative for disabled employees. According to Section 81(4), if the employer decides to employ the disabled person, it must help that employee to attain his or her full potential in his or her daily work. The employer must compensate for the disabled person's disadvantages – for example, it must set up the workplace (eg, its machinery and equipment) and adjust the working hours in such a way that the employee can perform his or her duties despite his or her disability. In addition, a disabled person is entitled to:
- an additional five days of annual holiday pursuant to Section 125; and
- preferential treatment for in-house training and other measures which promote integration in the workplace.
These measures should ensure that, where possible, severely disabled people are able to find long-term employment which is compatible with their disability.
The most important protective provision grants severely disabled people special protection from dismissal. Under Section 85 of the code, disabled people can be dismissed only if the Integration Office gives its consent before the dismissal notice is issued. If the employer does not comply with this official procedure, the dismissal is invalid. This means that careful preparation and planning are necessary, as proceedings before the Integration Office can considerably delay issuing a dismissal notice or even prevent it, depending on the decision made by the authorities.
A special feature of the Protection against Unfair Dismissal Act regarding dismissal for operational reasons is that employees are selected-based for redundancy on social criteria before the issuance of dismissals. The social criteria which the employer must consider pursuant to Section 1(3) of the act include the employee's age, length of service, maintenance obligations and severe disability (the principle is 'first in, last out – except if handicapped').
Enquiring about severe disability
Many organisations provide advice and support to employers to enable them to fulfil their obligations. However, the employer must first know whether it is dealing with a severely disabled applicant or employee. The position in legal literature and case law used to be that the employer was allowed to ask during an interview whether a candidate had a severe disability.
Today, this issue is contentious. This is because Section 81(2) of the code and the 2006 Equal Treatment Act prohibit discrimination. In principle, any type of discrimination (including discrimination by reason of disability) is prohibited. Thus, the prevailing opinion in legal commentary is that enquiring about severe disabilities when hiring employees is inadmissible. The applicant is not obliged to respond to such a question or to not answer it truthfully. Unfortunately, the applicant often affirms his or her disability. If the applicant is then not hired, he or she can take legal action and claim compensation from the employer in accordance with the Equal Treatment Act. There is consensus that a candidate is required to answer the question truthfully only if the disability would have a "material and decisive effect on the applicant's ability to meet the requirements of the job".
The Federal Labour Court has yet to rule on an employer's right to ask whether a candidate has a disability during the application process – for instance, whether a disability makes it impossible for the employee to carry out the work if the candidate has expressly left the question open.(1)
On February 16 2012 the Federal Labour Court issued a ruling in a case(2) concerning an employer which had enquired whether an employee was disabled during the employment relationship. The employer had asked the employee whether he was disabled six months after the employment relationship had begun. The employer was issuing staff with dismissals for operational reasons and wanted to identify the selection criteria in advance. This selection procedure can be carried out only with current data. All the employees were asked to fill out a questionnaire which included a question as to whether they were disabled or had an equivalent status.
The claimant had a 60% disability and had worked for over six months for the company. After six months' service – commonly referred to as the 'trial period' – employees enjoy protection from dismissal pursuant to the Protection against Unfair Dismissal Act. When the claimant filled out the questionnaire, he stated that he was not disabled (ie, he deliberately answered untruthfully). He was later dismissed in the same way as the other employees. The employee subsequently claimed for unfair dismissal. He based his argument primarily on the fact that the dismissal was invalid due to the special protection that he enjoyed as a person with disabilities, as the Integration Office had not been involved before the dismissal was issued. The Federal Labour Court rejected his claim, refusing him special protection from dismissal. As the claimant had denied having a disability on the questionnaire, he was unable to invoke his disability. The court reasoned that the claimant's behaviour was contradictory in this case. If a disabled employee does not disclose reasons which could substantiate his or her claim during the selection of employees for dismissal based on social criteria, despite being asked by his or her employer to do so, he or she may not later invoke such reasons in future proceedings. In this case, the claimant had forfeited his right to special protection from dismissal; thus, his dismissal was valid. The court also ruled that in future the employer would be allowed to enquire about disabilities during the employment relationship, once the relevant trial period expired. An employer also has legitimate interests – for instance, an interest in issuing dismissal notices which are valid.
Although it may not first appear so, this decision is positive for severely disabled employees:
- It provides clarity and establishes that not every question is discriminatory.
- It enables both parties to deal openly with disabilities.
- It enables both parties to avoid legal disadvantages.
- It meets the requirements of fairness.
- It establishes that the employer can duly fulfil its obligations to the benefit of the disabled employee (including special protection from dismissal).
- It establishes that thorough preparation and expert advice can save time and money.
These should help both the employer and the disabled employee.
For further information on this topic please contact Bjoern Gaul, Bernd Roock, Oliver Simon or Antje-Kathrin Uhl at CMS Hasche Sigle by telephone (+49 711 9764 248), fax (+49 711 9764 96249) or email ([email protected], [email protected], [email protected] or [email protected]).
Endnotes
(1) See Federal Labour Court ruling of July 7 2011 (2 AZR 396/10) on the right to enquire about disability during the application process.
