If the workplace of a severely disabled person is no longer available, the claim to employment under Section 81(4) SGB IX Social Code old version (now Section 164(4) SGB IX) will not come into effect if there is no possibility of continued employment.
Federal Labor Court, May 16, 2019 - 6 AZR 329/18
The severely disabled plaintiff was employed by the insolvent employer for many years, with the employment relationship subject to special protection against dismissal under collective bargaining agreements. The employer terminated the employment on operational grounds in the context of the insolvency proceedings that were initially conducted under the company's own administration, after the employer had concluded a reconciliation of interests including a list of names with the works council in accordance with Section 125(1) Insolvency Code. The list included the plaintiff's name, whose workplace did no longer have to be occupied due to redistribution of the remaining tasks. The auxiliary activities, which the plaintiff performed, had now been assumed by the remaining specialists also. The plaintiff is unable to perform other activities. Nevertheless, he considered the notice of dismissal ineffective and referred to the special protection against dismissal under collective bargaining agreements and to the claim to employment under Section 81 (4) SGB IX old version (now Section 164 (4) SGB IX).
With its judgement, the Federal Labor Court upheld the decision of the lower instances, which had rejected the complaint for protection against dismissal. In accordance with Section 164(4) SGB IX (until December 31, 2017: Section 81(4) SGB IX old version), in an existing employment relationship, severely disabled persons may require from their employer the performance of the employment relationship corresponding to their health situation up to the limits of reasonableness. In the opinion of the Federal Labor Court, this does not entitle severely disabled...