Germany: No prevention procedure for dismissals of severely disabled employees during the waiting period

Federal Labour Court: Employers are not required to carry out a prevention procedure in accordance with Section 167 para 1 German Social Code Book IX (SGB IX) when dismissing severely disabled employees during the six-month waiting period (Section 1 para 1 German Protection Against Dismissal Act (KSchG)) (judgment of 3 April 2025 - 2 AZR 178/24).

Principle: Prevention procedure before giving notice of termination

The prevention procedure in accordance with Section 167 para 1 SGB IX must be carried out regularly before giving notice of termination to severely disabled employees and those who are treated as severely disabled. Employers are obliged to involve the representative body for severely disabled employees, the works council and the Integration Office (Integrationsamt) at an early stage when difficulties arise that could jeopardise the employment relationship. The aim is to seek solutions together, avoid impending dismissals, and secure the employee’s continued employment.

Cologne Regional Labour Court: Prevention procedure must also be carried out during the waiting period

The Federal Labour Court had already ruled in 2016 that a prevention procedure does not have to be carried out during the six-month waiting period (judgment of 21 April 2016 – 8 AZR 402/14). 

In 2024, however, the Cologne Regional Labour Court, deviating from the case law of the Federal Labour Court, assumed an obligation to carry out the prevention procedure even during the waiting period (judgment of 12 September 2024 – 6 SLa 76/24). The Cologne Regional Labour Court argued that Section 167 para 1 SGB IX does not provide for any time limit for the implementation of the prevention procedure. The meaning and purpose of the prevention procedure also argue against a time limit. Particularly during the probationary period, it can be useful to secure the employment relationship beyond the first six months and for the future by identifying and applying supportive measures.

Federal Labour Court: Prevention procedure only applicable if the Protection Against Dismissal Act applies

In its decision, the Federal Labour Court confirmed its previous case law that the prevention procedure must only be carried out if the KSchG applies (judgment of 3 April 2025 - 2 AZR 178/24). The provision is based on the terminology of the KSchG and thus presupposes its applicability. 

Employees are only protected by the KSchG pursuant to Section 1 para 1 KSchG once they have completed the so-called "waiting period", i.e. once the employment relationship has existed for more than six months. 

Consequently, the Federal Labour Court clarifies that the obligation to carry out the prevention procedure does not only apply to dismissals within the waiting period, but also to so-called small businesses, which regularly employ no more than 10 employees.

Limited protection during the waiting period

The decision creates legal certainty for employers and significantly reduces the administrative burden associated with dismissals during the waiting period. 

However, even during the waiting period, dismissal may not be based on the employee's disability. Dismissal on the grounds of disability constitutes discrimination in accordance with Section 164 para 2 SGB IX in conjunction with Section 22 German Equal Treatment Act and is therefore null and void in accordance with Section 134 German Civil Code. 

It should also be noted that an entitlement to disability-friendly employment in accordance with Section 164 SGB IX also exists during the waiting period. The entitlement exists regardless of the applicability of the KSchG.

Practical advice

The lack of an obligation to carry out a prevention procedure during the waiting period considerably simplifies the legal situation for employers. Nevertheless, factual reasons for dismissal should be carefully documented to rule out the appearance of disability-related discrimination. In the event of disability-related problems, alternative employment opportunities should always be examined.