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Workplace integration management

Works council‘s right of supervision
(Federal Labour Court, decision dated 07.02.2012 – 1 ABR 46/10)

The employer and the works council had concluded a works agreement regarding the implementation of workplace integration management measures (WIM), according to which, the employer is to present the works council with a quarterly list of employees who qualify for integration into the workplace (continuous or repeated disability of more than six weeks during any one year). The employer refused to fulfil this obligation, stating that such a list could only be presented to the works council if the employee concerned agreed to this in advance.

The Federal Labour Court ruled that irrespective of the provisions of the works agreement concluded between the involved parties, the employer must provide the works council with a quarterly list stating the names of all employees who qualify for workplace integration. This entitlement results from § 80 (2) clause 2 German Works Constitution Act (BetrVG) in conjunction with § 84 (2) clause 7 German Social Code (SGB) IX. The works council must ensure that the employer fulfils the obligation to perform the WIM measures incumbent upon it pursuant to § 84 (2) German Social Code (SGB) IX. To this end, a list of corresponding employees must be presented. The court ruled that the communication of data of the employees concerned is not at variance with data protection requirements. While the data in question is deemed to be sensitive pursuant to the Federal Data Protection Act (BDSG), the collection and processing of the data and even its disclosure to the works council is, however, permitted pursuant to § 28 (6) No. 3 Federal Data Protection Act (BDSG) even if the employee has not consented to the disclosure, since the employer is required by law to implement the WIM measures.

Practical recommendations

With its ruling, the Federal Labour Court strengthened the rights of the works council with regard to the implementation of WIM measures by defining the employer‘s disclosure duty in greater detail. In view of the imminent disadvantages of not implementing WIM measures in connection with a dismissal on personal grounds, employers are urgently advised to comply with the provisions of § 84 (2) German Social Code (SGB) IX applicable to people with and without severe disabilities. The incorrect implementation or the non-implementation of WIM measures, which should be avoided at all costs, means that the chances of a dismissal on personal grounds being successful before a labour court are virtually zero.

Dr Alexander Krol
Author:
Lawyer and certified specialist
for labour and employment law
Dr Alexander Krol
krol@buse.de

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