Dismissal of severely disabled persons and persons with equal rights; application for consent

If you wish to terminate the employment of a severely disabled person or a disabled person of equal status, you must first obtain the approval of the Inclusion Office.

Description

Severely disabled persons and persons with equal rights have special protection against dismissal in working life. In the case of severely disabled persons or persons with equal status, the ordinary termination of the employment relationship by the employer, as well as the extraordinary termination (without notice), requires the prior consent of the Inclusion Office. In Bavaria, the Inclusion Office at the Bavarian Family Social Affairs Center (ZBFS) grants this approval, as it performs the tasks of the Integration Office in Bavaria.

The special protection against dismissal does not apply during the first 6 months of employment and for certain employment relationships specified in Section 173 of the Social Code IX.

A notice of termination that requires the prior consent of the Inclusion Office and has been issued without this consent is legally invalid (void).

The special protection against dismissal also applies to severely disabled homeworkers and persons treated as such. The notice period of two weeks stipulated in the Home Work Act is increased to four weeks.

Prerequisites

The reason for termination must be related to a recognized disability.

The employer's obligations and opportunities to use the benefits of accompanying assistance in working life or support from rehabilitation providers to maintain the job have been exhausted.

Procedure

An employer must submit the application for consent to dismissal or termination of employment in writing or electronically to the locally responsible integration office. In Bavaria, the tasks of the Integration Office are performed by the Inclusion Office at the Center for Bavarian Family Social Affairs (ZBFS) with its seven regional offices. The regional office of the Integration Office responsible for the approval in each case is determined by the location of the company and is independent of the employee's place of residence.

The application must be submitted in writing or electronically and must be substantiated.

The further procedure by the Inclusion Office is governed by the so-called principle of official investigation. This means that the Inclusion Office is obliged on its own initiative to clarify everything that it considers necessary for the investigation of the facts and is not bound by the submissions or requests for evidence of the parties involved. The Inclusion Office therefore questions witnesses, experts, treating physicians and, if necessary, calls in specialist services, for example the Technical Advisory Service or an Integration Specialist Service. The representative body for the severely disabled or the works council or staff council (if available in the company) are also asked for their opinion.

To clarify any ambiguities, the Inclusion Office can hold a conciliation meeting, if necessary on site.

Special notes

The representative of severely disabled persons (representative of severely disabled persons) has the same personal legal position vis-à-vis the employer, in particular the same protection against dismissal, transfer and secondment as a member of the works council or staff council.

The following applies within the probationary period: If the employment relationship has not existed for more than six months without interruption when the notice of termination is received, you can terminate the employment relationship without the approval of the Integration Office or ZBFS Inclusion Office.

Severely disabled persons or persons of equal status who have only been terminated without notice due to strikes and lockouts have a right to reinstatement after their termination.

Deadlines

Approval must be applied for in good time.

Notice of termination may be given at the earliest after receipt of approval from the Integration Office or ZBFS Inclusion Office.

If approval has been granted for an ordinary termination, the termination may only be pronounced within one month of notification of the approval.

If approval has been granted for an extraordinary termination, the termination can only be declared immediately after the approval has been granted.

If a termination is not declared within the stipulated period after the approval has been granted, the approval decision loses its validity and the special protection against dismissal of the severely disabled person or person with equal status is revived.

Processing time

In the case of an application for approval of ordinary termination, the Inclusion Office should make a decision within one month of receipt of the application.

This deadline cannot always be met, especially if time-consuming clarifications of the facts have to be made.

In the case of extraordinary termination, on the other hand, there is a mandatory deadline of two weeks within which the Inclusion Office must make a decision. If this is not done, the fiction of consent occurs after the expiration of time - the consent is deemed to have been granted.

Forms

  • Form, Bavaria-wide: Antrag auf Zustimmung zur Beendigung eines Arbeitsverhältnisses
    Please note

    This form has to be signed and sent to the responsible authority. You can sign the form manually and send it by email/fax or sign the form electronically with your qualified electronic signature an send it by (secure) email. If the responsible authority has set up a De-Mail account, you can also send the form by De-Mail using an sender-confirmed message.

  • Form, Bavaria-wide: Anlage zum Zustimmungsantrag bei (Teil-)Betriebsschließung und/oder Insolvenzverfahren
    Please note

    This form has to be signed and sent to the responsible authority. You can sign the form manually and send it by email/fax or sign the form electronically with your qualified electronic signature an send it by (secure) email. If the responsible authority has set up a De-Mail account, you can also send the form by De-Mail using an sender-confirmed message.

Online procedures

Fees

  • The entire administrative procedure at the Inclusion Office is free of charge.

    However, costs for a commissioned authorized representative can only be reimbursed in the opposition proceedings, and only if the opposition was successful. The appeal is only successful if either the Appeals Committee has granted the appeal request or the Inclusion Office has complied with the appeal request in the context of a remedy.

Remedy

The decision of the Inclusion Office can be reviewed with an objection, possibly also immediately or subsequently with a complaint to the administrative court. However, the legal remedies do not have a suspensive effect. This means that the employer can immediately make use of the consent granted and terminate the employment relationship, but bears the risk that the consent decision could also be overturned later in the appeal proceedings.

Links to more information

Status: 21.03.2022

Responsible for editing: Bayerisches Staatsministerium für Familie, Arbeit und Soziales

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  • Online transactions, Bavaria-wide
  • Online transactions, locally limited
  • Prefillable Form, Bavaria-wide
  • Legal bases, Bavaria-wide
  • Legal bases, locally limited
  • Fees, Bavaria-wide
  • Fees, locally limited
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