No Duty to Disclose a Severe Disability in Job Interviews

Higher Labour Court of Cologne (LAG Köln), Judgment of April 16, 2026 – Case No. 6 SLa 574/25

In its judgment of April 16, 2026 (Case No. 6 SLa 574/25), the Higher Labour Court of Cologne (Landesarbeitsgericht Köln) held that the dismissals and the rescission of the employment relationship of a severely disabled employee by the employer were invalid, as there was no duty to disclose the severe disability at the time the contract was concluded and the required approval of the Integration Office (Integrationsamt) for the dismissals had not been obtained.

A. Facts of the Case

The plaintiff, who held a degree of disability (Grad der Behinderung, GdB) of 60 and was thus classified as severely disabled, had been employed as a cleaning worker at the defendant’s law firm since September 1, 2021. The employment relationship ended no later than with the plaintiff’s own resignation of January 15, 2024, effective February 29, 2024.

Prior to this resignation, the defendant issued a total of four dismissals to the plaintiff:

• an ordinary dismissal dated September 8, 2023,
• an extraordinary dismissal without notice dated September 27, 2023,
• a dismissal dated November 2, 2023, and
• a dismissal dated November 20, 2023.

None of these dismissals had been approved by the Integration Office (Integrationsamt). At the time of the first dismissal, the defendant was not yet aware of the plaintiff’s severe disability, but the plaintiff informed him of it within three weeks. However, the defendant was already aware of the plaintiff’s cancer diagnosis, which had been his reason for terminating the employment relationship.

In addition, on December 1, 2023, the defendant declared the rescission of the employment contract on the grounds of fraudulent misrepresentation (arglistige Täuschung), contending that the plaintiff had been obligated to disclose her severe disability to him at the time the contract was concluded. However, according to the defendant’s own submissions, he had not asked the plaintiff any corresponding question about a severe disability during the conclusion of the contract.

The plaintiff filed an action with the Labour Court of Aachen (Arbeitsgericht Aachen) on September 21, 2023, challenging all of the dismissals and additionally claiming payment of vacation pay, continued remuneration during illness, default wages, and the issuance of a work reference.

The Labour Court of Aachen largely granted the claim in its judgment of July 11, 2025 (Case No. 4 Ca 2741/23). The defendant filed an appeal.

B. Reasoning of the Higher Labour Court of Cologne

The Higher Labour Court of Cologne dismissed the defendant’s appeal.

1. Invalidity of the Dismissals Pursuant to § 168 SGB IX in Conjunction with § 134 BGB

The Higher Labour Court of Cologne upheld the first-instance decision and found that all four dismissals were invalid pursuant to § 168 SGB IX in conjunction with § 134 BGB due to the absence of approval from the Integration Office. With respect to the ordinary dismissal of September 8, 2023, the court noted that although the defendant was not yet aware of the plaintiff’s severe disability at the time this dismissal was issued, the plaintiff had informed him of it within three weeks. For the dismissals of September 27, 2023, November 2, 2023, and November 20, 2023, the defendant already had knowledge of the severe disability, yet no approval decisions from the Integration Office had been obtained for any of these dismissals.

The Higher Labour Court further clarified that the consent requirement under § 168 SGB IX applies irrespective of whether the employer was aware of the employee’s severe disability at the time of the dismissal.

2. No Ground for Rescission Due to Absence of a Duty to Disclose

The Higher Labour Court of Cologne held that the defendant’s declaration of rescission dated December 1, 2023, was without effect, as there was no ground for rescission within the meaning of § 123 BGB.

The court clarified that, until 1995, a severely disabled person was still obligated to truthfully answer questions regarding a severe disability (cf. Federal Labour Court (BAG), Judgment of October 5, 1995 – 2 AZR 923/94). However, at the latest since the entry into force of § 81 (2) SGB IX (now § 164 (2) SGB IX) in 2001 and the entry into force of §§ 1, 7 AGG (General Equal Treatment Act) in 2006, no duty to disclose the status of severe disability exists any longer. Since then, an employee is permitted to give an untruthful answer to a question about a severe disability; such a permissible lie therefore cannot constitute a ground for rescission.

The court further emphasized that, in the present case, it was not even necessary to reach the question of the plaintiff’s right to lie regarding her severe disability, because, according to the defendant’s own submissions, he had not even asked the plaintiff a corresponding question during the conclusion of the contract. Without a question having been posed beforehand, no duty to disclose arises from any legal perspective.

Leave to appeal to the Federal Labour Court was not granted, as the decision was based on the circumstances of this particular case.

C. Practical Guidance

For employment law practice, it should be noted that employers must obtain the approval of the Integration Office pursuant to § 168 SGB IX before every dismissal of a severely disabled employee – irrespective of whether the employer was aware of the severe disability at the time the dismissal was issued. If the severe disability is disclosed by the employee within three weeks of receipt of the dismissal, the special protection against dismissal (Sonderkündigungsschutz) applies retroactively. Employers should therefore, in case of doubt, always ascertain whether the employee may hold severely disabled status and, as a precaution, apply for approval. Where the special protection against dismissal applies retroactively because the employee disclosed the severe disability within three weeks of receipt of the dismissal, the employer’s only recourse in most cases is to apply for approval from the Integration Office and, once approval has been granted, to issue a new dismissal. This is because a dismissal issued without prior approval from the Integration Office is irremediably invalid.

Asking about a severe disability during a job interview is impermissible and may therefore be answered untruthfully by employees without this constituting a ground for rescission of the concluded employment contract under § 123 BGB. Employers should therefore generally refrain from asking about a severe disability during the hiring process. Even without such a question, there is no independent duty of disclosure on the part of the applicant, as is rightly inferred from § 164 (2) SGB IX and §§ 1, 7 AGG.

Rescission on the grounds of fraudulent misrepresentation pursuant to § 123 BGB is therefore precluded where a severe disability has been concealed, as, in the absence of a duty to disclose, there is no unlawful act of deception on the part of the employee. Accordingly, employers cannot rely on the argument that they would not have entered into the contract had they known of the severe disability.