Federal Labour Court: Probationary Dismissal Without Disability Representative Is Void

Germany’s Federal Labour Court ruled that a probationary dismissal is void if the employer fails to properly involve the disability representative. Affected employees hold a recognised degree of disability.

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Federal Labour Court: Probationary Dismissal Without Disability Representative Is Void

Germany’s Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on 29 January 2026 (case ref. 2 AZR 128/25) that a dismissal during the probationary period is void if the employer fails to properly involve the disability representative (Schwerbehindertenvertretung). The ruling affects employees with a recognised degree of disability. A dismissal during probation is only valid if the disability representative had sufficient time to issue a statement.

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Why the Dismissal Failed

Section 178(2) of the German Social Code IX (SGB IX) requires that the disability representative is properly consulted before any dismissal. The court emphasised that the response period must be at least one week — by analogy with the works council hearing under Section 102 of the Works Constitution Act (BetrVG). It is not enough for the disability representative simply to acknowledge receipt of the dismissal notice.

What Happened in This Case

A severely disabled employee was dismissed during his probationary period after arriving late for work on three days. The employer did consult the disability representative, but the representative only acknowledged the dismissal notice on 11 December 2023. The dismissal was served on 14 December 2023 — before the one-week response period had expired. On top of that, the disability representative never issued a clear final statement.