No duty to disclose a severe disability during the hiring process

As a general rule, applicants for a job in Germany are not required to disclose a severe disability on their own initiative during the hiring process. For this reason, the Cologne Higher Labor Court held that four terminations issued without the consent of the Integration Office, as well as an attempted rescission of the employment contract based on the applicant’s non-disclosure, were ineffective (judgment of April 16, 2026 – 6 SLa 574/25).

Background

The plaintiff had been employed by an attorney as a cleaner since September 2021. She had a severe disability with a degree of disability (GdB) of 60. The defendant terminated the employment relationship four times without first obtaining the necessary consent of the Integration Office. He learned of the plaintiff’s severe disability for the first time within three weeks after issuing the first termination and therefore knew of it when he issued the subsequent terminations.

The defendant also sought to rescind the employment contract. According to the attorney, the plaintiff had deceived him when the contract was concluded by failing to disclose her severe disability. The plaintiff brought an action for protection against dismissal and also claimed, among other things, back pay for the employer’s failure to accept her services, vacation pay, continued remuneration during incapacity for work, and a qualified employment reference. The labor court largely upheld the claim. The defendant’s appeal was not successful.

Reasons for the decision

The Cologne Higher Labor Court held that all four terminations were ineffective. The Sixth Chamber found that the prior consent of the Integration Office required under Section 168 of the German Social Code, Book IX (SGB IX), had not been obtained in any of the cases. This also applied to the first termination. Although the defendant had not been aware of the plaintiff’s severe disability at that time, the plaintiff had informed him within three weeks after receiving the termination and had therefore acted in a timely manner.

The attempted rescission was likewise ineffective. There were no grounds for rescission based on fraudulent misrepresentation. According to the defendant’s own submissions, he had not asked about any severe disability when the contract was concluded. In the absence of such a question, there was no duty to disclose the disability on any legal basis.

Moreover, under Section 164 (2) of the German Social Code, Book IX, and Sections 1 and 7 of the General Equal Treatment Act (AGG), a question about severe disability may generally be answered untruthfully. An answer that is legally permitted to be untruthful cannot support rescission of the contract.

The employer’s default in accepting the plaintiff’s services was also not terminated by the defendant’s statement to the Integration Office that he no longer intended to assert any rights based on a termination. A termination, as a unilateral constitutive declaration, cannot simply be withdrawn unilaterally. In addition, the statement had not been made to the plaintiff, and an earlier termination remained outstanding.

With respect to vacation pay, continued remuneration, and the employment reference, the appeal was already inadmissible because it lacked adequate grounds.

Practical takeaways

The defendant’s primary area of practice was presumably not employment law. For many years, it has been clear that an applicant generally cannot be expected to disclose a severe disability without being asked, and that failing to do so cannot be treated as deception.

Nevertheless, before terminating an employee, employers must always determine whether special protection against dismissal applies. Under Section 173 (1) no. 1 SGB IX, the requirement to obtain consent generally applies only after six months of employment. If the employer is unaware of the employee’s severe disability by the time the termination is delivered to the employee, the employee may still preserve this protection by notifying the employer within three weeks’ notice.

Accordingly, should an employee’s severe disability becomes evident only after a termination has been issued, employers must reassess the effectiveness of the first termination and obtain the required official consent before issuing any further termination.