Two-week notice period under Section 626(2) of the German Civil Code must be observed in event of summary dismissal, even where proceedings regarding severe disability are ongoing

The mere notification of an application for recognition as a person with a severe disability does not create a situation of reliance that would make it appear an abuse of rights to rely on non-compliance with the notice period.

Facts of the case

A long-serving production specialist was initially dismissed with notice on grounds of ill health. This dismissal was declared invalid by the Labour Court. During these proceedings, the employee had argued that she had responded to an offer of a Workplace Integration Management (BEM) programme and had informed her line manager of this. The employer later accused her of litigation fraud and dismissed her summarily without notice. Prior to the dismissal being issued, the employee had submitted an application for recognition as a person with a severe disability, which had, however, been rejected; appeal and legal proceedings against this decision were pending. As a precautionary measure, the employer sought the approval of the Integration Office for the summary dismissal, which was granted. The claimant complained of a failure to comply with the two-week notice period under Section 626(2) BGB.

The decision

The Regional Labour Court held that the summary dismissal was invalid. It did, however, acknowledge the existence of grounds for dismissal. However, the dismissal failed due to non-compliance with the two-week notice period under Section 626(2) BGB. The employer had become aware of the inaccuracy of the claimant’s pleadings on 17 February 2023; the notice of dismissal on 8 March 2023 was therefore late under Section 174(2) SGB IX. Compliance with the two-week notice period under Section 174(2) SGB IX (application to the Integration Office on 21 February 2023) was insufficient, as the claimant had never been recognised as a person with a severe disability. The social court proceedings ended with the dismissal of her application.

The central issue is whether the claimant is abusing the law by invoking non-compliance with the time limit under Section 626(2) BGB, even though she herself, through her application for recognition as a severely disabled person, prompted the employer to involve the Integration Office. In this respect, the Regional Labour Court expressly departs from an earlier decision of the Federal Labour Court (“BAG”, of 27 February 1987 – 7 AZR 632/85). In the Regional Labour Court’s view, the employer’s mere knowledge of an ongoing recognition procedure does not create a basis for reliance. Neither the employer nor the employee could reliably assess the prospects of success of such an application. The employer is therefore not prevented from giving notice of termination by the employee’s contradictory behaviour in a manner contrary to good faith. A ‘two-track approach’ – i.e. observing both time limits in parallel – is reasonable for the employer.

Implications for practice

The judgment is of considerable significance for companies wishing to give notice of extraordinary dismissal to an employee who has applied for recognition as a person with a severe disability. The Regional Labour Court clarifies that compliance with the time limit under Section 174(2) of SGB IX does not replace the time limit under Section 626(2) of BGB if the severe disability is not subsequently recognised. The older BAG case law, according to which a two-track approach would be unreasonable for the employer, is expressly rejected.

Of particular practical relevance is the fact that the LAG did not consider the invocation of Section 626(2) of the BGB to be an abuse of law, even though the employee herself had triggered the approval procedure before the Integration Office through her application for recognition. Companies must therefore always keep both deadlines in mind in parallel where the status of severe disability is unclear and, where necessary, proceed on two tracks. An appeal to the BAG has been granted (2 AZR 6/26), so a ruling by the highest court is to be expected.

Practical tip

The decision shows that, in cases of summary dismissal, companies should always observe both time limits in parallel if an application for recognition as a severely disabled person has been submitted. Otherwise, they risk the dismissal being invalidated if the severe disability is not subsequently recognised. Pending the Federal Labour Court’s decision, a two-pronged approach is recommended: within the two-week period, both the application should be submitted to the Integration Office and – if approval is not granted in time – the dismissal should be issued as a precautionary measure subject to subsequent approval.