Strengthened rights for (severely) disabled employees during the first six months of employment

Judgment of the European Court of Justice of 10 February 2022 in Case No. C-485/20

Most employees don’t feel entirely secure in their employment relationship during the first six months – rightly so. The strong general protection against unfair dismissal, which applies to all employees equally, and the stricter special protection against unfair dismissal which applies to groups that are worthy of protection, such as severely disabled persons, normally only starts once the employment relationship has existed for an uninterrupted period of six months. Often, the parties agree on a probationary period with a significantly reduced notice period.

In a recent judgment, the European Court of Justice (ECJ) significantly reduced this uncertainty during the first six months, at least for (severely) disabled employees. The Court held that the employment of a (severely) disabled person can only be terminated during the probationary period where certain conditions are fulfilled.

Facts of the case

The claimant was employed as a railway track maintenance technician for a Belgian railway company and was still a trainee. He was diagnosed with a heart condition and fitted with a pacemaker. As the pacemaker was sensitive to electromagnetic fields, he could no longer be employed to work near the railway tracks. In addition, he was recognised as having a disability. The employee was then employed for three months as a warehouseman and later dismissed on the grounds that he was unable to perform the duties for which he had been recruited. In contrast to statutory staff members, during the training period, employees did not have the right to be reassigned to another position.

The judgment

The ECJ was asked to decide whether this approach was compatible with the requirements of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. This Directive requires “reasonable accommodations” to be made for people with disabilities. The Court held that the Directive applies to all employees, even trainees. Accordingly, a disabled employee must be reassigned to another position rather than have their employment terminated, unless this would impose an unreasonable burden on the employer. To assess whether such measures would constitute a disproportionate burden, the financial burden, the size, financial resources, and total turnover of the company, as well as the possibility of obtaining public funding or other assistance will be decisive. There must also be a suitable vacant position that the worker is capable of performing given their skills and abilities. This must be determined in advance.

Consequences for practice

This judgment will also have an impact on the German legal system: in Germany, a severely disabled employee only has special protection against dismissal after six months of uninterrupted employment. This was an attempt by the German legislator to remove an obstacles to the employment of workers with a severe disability because an immediate increase in the level of protection against unfair dismissal for employees with a severe disability could act as a deterrent for some employers and thus reduce the number of opportunities on the employment market for severely disabled applicants. This judgment could thwart the conscious decision of the legislators and its desired effect. During the first six months of employment, employers in Germany must now also respect at least a toned-down protection against dismissal. Before dismissing an employee with a (severe) disability, the employer must check whether the employee may be reassigned in accordance with the guidelines established by the ECJ. This could result in companies being less willing to employ persons with (severe) disabilities.

Practical tip

It remains to be seen just how far this judgment will be picked up by the German legislator and labour courts. In any case, it can be expected that (severely) disabled employees will seek to use this judgment in their favour. Employers are therefore advised to keep the requirements of the ECJ in mind and give them due account prior to issuing a notice of dismissal for an employee who is (severely) disabled.

Regina Holzer