Zustimmung zur Kündigung schwerbehinderter Menschen

If you wish to dismiss a severely disabled person or a disabled person with equivalent status, you must first obtain the approval of the competent authority.

Severely disabled and equivalent disabled people are particularly protected against dismissal. For this reason, you must obtain the approval of the competent authority before giving notice.

Approval is required regardless of the reason for the intended dismissal (personal, operational or behavioral). The special protection against dismissal also applies regardless of the size of your company.

You need the approval of the competent authority for all types of dismissals, i.e. for

• ordinary dismissals,
• extraordinary dismissals (without notice) and
• notices of change.

In addition to the actual reason for dismissal, the competent authority will take into account in its decision, as part of the legally required balancing of mutual interests, for example

• Size and economic situation of the employer and
• fulfillment of the employment obligation

as well as:

• The nature and severity of the disability,
• age,
• personal circumstances of the severely disabled person,
• the length of service with the company and
• his or her chances of finding another job on the general labor market in the event of dismissal.

Particularly in the case of dismissals for personal and behavioral reasons, the dismissal protection proceedings will clarify what the company or the department and the company integration team did to avert the dismissal in advance and whether any preventative measures were taken.

In the case of extraordinary dismissals (without notice), the competent body checks whether the dismissal is related to the severe disability. If this is not the case, it will approve the dismissal and thus open the way to the labor court.

Dismissal without the involvement of the representative body for severely disabled employees (if present in the company) is invalid.

Dismissal without the prior consent of the competent body is also invalid. It cannot be subsequently approved by the competent body either.

You only do not need approval if the severely disabled employee

• resigns themselves,
• has worked in your company for less than 6 months,
• has reached the age of 58 and is entitled to a severance payment or similar benefit,
• in the event of dismissal for weather-related reasons, if the employer has given a binding promise of re-employment,
• if the status as a severely disabled person could not be determined by the competent authorities at the time of termination, or
• the employment relationship is terminated without notice, for example by means of a termination agreement.

• Severely disabled pass
• Recognition notice from the pension office about the severe disability

  (is requested from employees by the competent authority. The employer has no right to this document).

• Equal opportunities notice from the employment agency
• Job description
• Detailed justification of the intention to terminate

• Recognition as a severely disabled person: a degree of disability of at least 50 must have been determined by the pension office.
• Equality: if the degree of disability is 30 or 40, you must have been granted equality with a severely disabled person by the employment agency.
• An application must have been submitted to the pension office or the employment agency (equal status) at least 3 weeks before the application for approval of the termination.

You must apply in writing for consent to the dismissal of a severely disabled person:

• The application can be made informally or by using an application form (available from the competent body).
• Upon receipt of the application for consent to dismissal, the competent body will examine the facts of the case. To this end, it will hear the severely disabled person and obtain the opinion of the works or staff council and the representative body for severely disabled employees.
• If necessary, the competent body also calls in specialists (e.g. the Technical Advisory Service) and obtains further opinions and expert reports. It may also interview witnesses to clarify the facts of the case.
• The competent body is obliged to work towards an amicable settlement at every stage of the proceedings. This can be done particularly well in an oral hearing with all parties involved.
• As part of an amicable settlement, the competent body can also offer services of accompanying assistance in working life from funds from the equalization levy, for example for disability-friendly workplace design or to compensate for extraordinary burdens that may be associated with the employment of the severely disabled person.
• If an amicable agreement cannot be reached, the competent body will make a decision on the application at its own discretion and after weighing up the mutual interests of both parties. Special regulations apply to terminations in connection with the cessation of operations, significant operational restrictions and insolvencies.
• The competent body will issue a notice of dismissal addressed to you as the applicant and at the same time to the employee as a party to the proceedings. In addition to the decision, the notice contains detailed reasons and a legal remedy.

The special protection against dismissal exists in addition to the protection against dismissal under employment law and does not replace it.

The purpose of special protection against dismissal is to protect severely disabled employees from disability-related disadvantages on the labor market and to compensate for them if necessary. This does not mean that severely disabled people cannot be dismissed.

The legislator obliges employers to take preventative measures in the event of difficulties arising (personal, operational or behavioral) in the employment relationship of a severely disabled person, with the involvement of company interest groups and the Integration Office (Section 167 (1) SGB IX). Securing an employment relationship by means of prevention has priority over dismissal and is a component of the dismissal protection procedure under SGB IX that is relevant to the examination and decision.

The dismissal of a severely disabled person by the employer without the involvement of the representative body for severely disabled employees is invalid.