"At the time of hiring, the seller was aware of the employee's special protection against dismissal, but the buyer had no knowledge of it. The buyer then terminates the employment relationship on operational grounds without the consent of the Integration Office. According to the BAG, the termination is invalid." This is the interim conclusion drawn by Kerstin Steffen, our specialist in employment law, Rechtsanwältin and Managing Director, in her article on special protection against dismissal, which she wrote in July 2009 for Wirtschaft aktuell, the magazine of the Borken Economic Development Agency. Read more here. [wpfilebase tag=file id=27 /]
Frequently asked questions
Frequently asked questions
Does the special protection against dismissal for severely disabled employees also apply after a transfer of business?
Yes, the special protection against dismissal under SGB IX transfers to the acquirer in the event of a transfer of business pursuant to § 613a BGB. The new employer assumes all rights and obligations of the employment relationship, including the special protection against dismissal for severely disabled employees.
Is a dismissal without the integration office's consent valid if the acquirer was unaware of the severe disability?
No. According to BAG case law, such a dismissal is invalid. What matters is the seller's knowledge at the time of hiring; this knowledge is attributed to the acquirer. A dismissal without prior consent of the integration office is therefore invalid, even if there are operational reasons.
Whose knowledge of a severe disability is attributed in a business transfer?
The transferor's knowledge of an employee's severe disability is attributed to the acquirer. Even if the acquirer had no information about the severe disability, they cannot rely on this lack of knowledge to circumvent the special protection against dismissal.
What requirements must an employer observe when terminating the employment of a severely disabled employee?
Before issuing the termination, the employer must obtain the consent of the Integrationsamt (Integration Office). This applies regardless of the reason for termination, including dismissals for operational reasons. A termination issued without such consent is invalid.