Within the first six months of an employment relationship, there is no special protection against dismissal for severely disabled employees. In principle, there are no special requirements for dismissal within this period. This could now change: In a recent decision on the dismissal of a railway worker, the European Court of Justice (judgment of 10 February 2022 in case C-485/20 HR Rail) ruled that the dismissal of employees with severe disabilities is only permissible under certain conditions, even during a probationary period.

According to the current German legal situation (s173(1) (1) of the Social Code IX, s168 et seq.) the special protection against dismissal for severely disabled individuals does not apply before the end of the first six months of the employment relationship. The termination of the employment relationship of a severely disabled person by the employer therefore only requires the prior consent of the Integration Office after the first six months. In addition, the general protection against dismissal under the Dismissal Protection Act also only applies after a waiting period of six months.

However, according to the European Court of Justice, severely disabled employees could also have a claim during the ‘probationary period’ or the ‘waiting period’ to be assigned another suitable job as a matter of priority before being dismissed. The ruling could lead to employers having to check whether employment in another job is possible when terminating within the probationary period of employees with severe disabilities.

The Court of Justice decision was in the context of a legal dispute in Belgium between HR Rail SA, the sole employer of employees of the Belgian railways, and an employee initially recruited as a railway worker. During his probationary period, the employee was diagnosed with a heart condition, certified as severely disabled and fitted with a pacemaker. However, the pacemaker reacted to electromagnetic fields, which are typically found in railway installations, so that the employee could no longer work in his original position from then on.

HR Rail initially employed him as a storekeeper. However, he was then dismissed during his probationary period. The reason given for the dismissal was that it was impossible for the employee to fulfil his contractual duties. Due to the fact that he was still in his probationary period, he could not be offered a job in another workplace.

The employee countered this with a complaint, claiming that he had been discriminated against because of his disability. His dismissal was contrary to the European Equal Treatment Framework Directive (Directive 2000/78/EC), which prohibits discrimination against people with severe disabilities in employment. Article 5 of that Directive provides in particular that employers must provide ‘reasonable accommodation for people with disabilities’. According to the employee, this also includes continued employment in another job.

The Belgian court then referred a question to the European Court of Justice for a preliminary ruling on the interpretation of Article 5 of the Equal Treatment Framework Directive, in particular with regard to the concept of ‘reasonable accommodation for people with disabilities’. The question was whether, in a case such as this one, employers are obliged to assign the employee to another job instead of dismissing him or her.

According to the Court of Justice, the concept of ‘reasonable accommodation’ implies that an employee who has been declared unable to perform the essential functions of his or her previous job because of his or her disability must be assigned to another job for which s/he has the necessary competence, ability and availability, provided that this measure does not impose a disproportionate burden on the employer. This includes an employee serving a probationary period after being recruited.

According to the Court, the scope of the Equal Treatment Framework Directive is broad enough to apply to the probationary period. Employers must take the appropriate measures necessary in the specific case to enable disabled individuals to have access to employment, to pursue a profession, to advance in their careers and to participate in education and training, provided that this does not impose a disproportionate burden on them.

The measures listed in the Directive include, for example, a transfer to another job. This applies to both the public and private sectors, including public bodies. However, the Court of Justice limited the obligation to take such measures to the effect that they must not impose a ‘disproportionate burden’ on the employer.

The European Court of Justice’s ruling turns the German legal system on its head. Under German law, the special protection against dismissal for severely disabled individuals as well as the general protection against dismissal under the Dismissal Protection Act only take effect after a waiting period of six months, also against the socio-political background that access to the labour market must be facilitated. Now, however, employers who employ a severely disabled person must already ask themselves in the first months of the employment relationship whether less definitive measures than dismissal can be considered.

Of particular importance is the question of what will constitute a ‘disproportionate burden’ for transferring an employee to another job rather than terminating his or her employment. In relation to this, the Court of Justice only makes a general reference to the fact that the financial cost of the measure as well as the size, financial resources and total turnover of the organisation must be taken into account.

Apart from the labour law consequences, the question arises whether the decision is actually a step forward towards equality. There is no doubt that the Court of Justice ruling increases the level of protection against dismissal for employees with disabilities. However, there is a danger that employers may have reservations about hiring people with severe disabilities for an indefinite period of time in the future, given the more stringent requirements for termination during a probationary period. However, in view of the risk of discrimination, such an approach is not advisable.

In collaboration with Jana Schön, trainee in the Berlin office.