The decision of the European Court of Justice (ECJ) dated February 10, 2022 (file no. C-485/20) definitely came as a surprise. Previously, employees with a severe disability were subject to special protection against dismissal only after the probationary period.
Now, however, the ECJ determined that employees with a severe disability can be dismissed only under certain conditions also during the probationary period. Accordingly, when dismissing a severely disabled person during the probationary period, employers will in future have to check whether a continued employment would be possible in another vacant position within the company.
In the underlying case, the ECJ had to decide on the legality of a Belgian skilled worker’s dismissal who was responsible for the maintenance and servicing of railroads. After starting his employment, the skilled worker had obtained a pacemaker during his probationary period. As a pacemaker could react sensitively to electromagnetic fields in railway tracks, he could no longer be employed in his original function; furthermore, he had been attested to be severe disabled due to the pacemaker. Thereupon, the employer terminated the employment relationship stating the employee was no longer able to fulfill the tasks for which he had been employed.
The skilled worker filed an action against such dismissal before the Belgian labor court claiming to have been discriminated because of his disability. His dismissal was contrary to the European equal treatment framework directive (Directive 2000/78/EC) which prohibits a discrimination against severely disabled people in an employment relationship. Art. 5 of the Directive provided, inter alia, that employers had to make “reasonable arrangements for disabled persons”.
With its decision of February 10, 2022, the ECJ decided the term of “reasonable arrangements” were to be interpreted in such a way that disabled employees must be transferred to another vacant position for which they have the required competence, skills and availability if, due to the disability, the previous position’s main functions can no longer be fulfilled. This also applied during the probationary period. However, it applied only if the employer did not suffer any unreasonable disadvantage. The organization’s or company’s financial expenditures, size, financial resources and overall sales as well as the availability of public funds or other support possibilities serve as key criteria in this assessment.
It is to be expected that German labor courts will expect from employers in future to examine, also in case of dismissals during the probationary period, whether severely disabled persons can be assigned to another vacant position within the company.
It is questionable whether the ECJ’s decision will actually strengthen or, in the worst case, even strengthen severely disabled people’s rights. A probationary period is an important and proven tool for employment relationships. Due to the presented case law, employers might in future, in case of doubt, use fixed-term employment contracts in order to maintain the concept of a probationary period. In order to prevent the accusation of discriminating severely disabled persons, employers might even decide to limit every new employment to an initial period of six months. Thus, the decision might – applied to the German protection system against unfair dismissal – have far-reaching consequences. It is now up to the German labor courts to implement these Union-law requirements in practice, at the same time counteracting unwanted effects on the labor market.