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LAG Schleswig -Holstein: Employers must be informed of the request with Disabilities

employers have terminated employees with severe disabilities, without knowing of the severe disability or the application for recognition of a severe disability, the terminated vegetables severely disabled workers employers within three weeks after receiving the notice inform about this fact. Otherwise they lose their special protection against dismissal from § 85 SGB IX.


The facts:
The applicant has since 1988 worked as a machine called women to the defendant.

After the defendant had decided to build some points, they agreed with the works with a balance of interests to list for cancellations. Then, a dismissal of the applicant was intended. This had previously been accorded a degree of disability of 40, which in operation is not known and was not obvious. Still during the ongoing negotiations on the balance of interests they had submitted a new application to be a severely disabled. Here, too, she had not informed the defendant.

The applicant filed within the three-week period of § 4, sentence 1 KSchG dismissal action. Only on the date of application, the defendant learned - about four weeks after notice of dismissal - from the severe disability of the applicant. A short time later, the applicant was granted a degree of disability of 50. It has given its particular on employment protection and rely on error attributable to social selection.

had your claim, both before the Labour Court and before the LAG unsuccessful. The decision of the LAG is, however, pending the revision of the BAG (Reference: 2 AZR 463/10).

Decision:
The termination is effective and has terminated the employment relationship of the parties on time. It is lawful for operational reasons in accordance with the principles of social choice, after due consultation of the works council and collective redundancy notification pursuant to § 17 Consumer Protection Act.

the applicant can not invoke the special protection against dismissal as severely disabled according to § 85 SGB IX. Although the special protection against dismissal is severely disabled workers grds. even when the employer notice of dismissal was not aware of the severe disability. This requires that the employee but the employer after receipt of notice within a reasonable time of his severely handicapped status or the request for recognition of information as severely disabled.

shall be deemed appropriate in that regard in accordance with § 4, sentence 1 of the Consumer Protection Act a notice period of three weeks. Only then can an evaluation contradiction between action and notification period may be prevented. To leave the employee with a longer notice period, he would thus not help, since the termination after three weeks - would be considered effective - due observance of the limitation period. The three-week period must - also apply to an original application for a declaration of severe disability - again to avoid contradicting valuation.

In case of dispute, the defendant has learned only after three weeks of receipt of notice that an application exists for a finding of severe disability. It was too late. The applicant can not therefore rely on the special employment protection for disabled persons and related selection errors.

(LAG Schleswig-Holstein Judgement of 06/07/2010, 1 Sa 403 e/09)