Monthly Archive: May 2014

When is previous employment a bar to fixed term employment?

German law states that a fixed term employment relationship without objective grounds is not possible where a fixed or unlimited term employment relationship has previously existed with the same employer (Sec. 14 para. 2  of the Part-Time Work and Fixed-Term Employment Contracts Act (Teilzeit- und Befristungsgesetz, TzBfG).  Some time ago, the Federal Labour Court (Bundesarbeitsgericht, …

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Posting patient photos on Facebook: Cause for Termination?

According to a ruling of the Higher Labour Court (Landesarbeitsgericht, LAG) Berlin-Brandenburg (April 11, 2014 – 17 Sa 2200/13), unauthorized publishing of patient photos, in particular on social networks, can justify a termination of an employment relationship for good cause, since it violates patients’ personal rights and confidentiality obligations. However, in the case at hand …

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Fake application failed to uncover age discrimination

The mere fact that there is an age difference between two job applicants who were treated differently does not necessarily indicate age discrimination.  For there to be an indication of discrimination, the two applicants must have comparable qualifications.   A job applicant, who clearly only applied for a position with the intention of claiming damages for …

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Works council election 2014: Election can only be stopped for obvious and gross mistakes

Employers are only allowed to prevent works council elections, if the election is void due to serious and obvious mistakes. In the case at hand, the employer, who runs two facilities with separate work councils, refused to cooperate with the election board prior to the works council election. The two existing works councils planned to …

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New Directive on Supplementary Pension Rights in Force 20 May 2014: Do German Employers Need to Take Action?

On 15 April 2014, the European Parliament issued a Directive improving the protection of supplementary pension rights (i.e. rights under occupational pension schemes – so-called ‘second-pillar’ pension schemes linked to an employment relationship) for mobile workers. The new rules help to remove current obstacles to free movement, such as the requirement for very long periods …

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Impact of the financial crisis on company pensions

The impact of the financial crisis may mean that companies do not have to adjust their pension benefits, as the Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on April 15, 2014 (docket number: 3 AZR 51/12). The Court ruled that the Defendant, one of Germany’s largest banks, does not have to adjust its company pension because …

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Entitled or not entitled to a “toilet-tip”?

This was the odd question that Labour Court (Arbeitsgericht, ArbG) Gelsenkirchen dealt with in a decision dated 22 January 2014 (docket number 1 Ca 1603/13).  A “toilet supervisor” had filed a lawsuit against her employer. It was her job to sit next to a table and collect tips on a collection plate. She did not …

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Greater enforcement of posted workers’ rights

The European Parliament intends to strengthen the rights of workers posted temporarily to provide services abroad.  On April 16th 2014 the EU Parliament voted for draft legislation aimed at improving the rules of the 1996 directive on the working conditions of posted workers. In particular, the new law shall avoid the circumvention of employee protection …

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Termination of religion teacher moonlighting as brothel owner was justified

In general, off-duty activities cannot justify the termination of an employee’s job position. However, a religion teacher had to learn the hard way that this principle is not without exceptions. Whilst employed to teach religion for a Jewish religious community, the teacher also owned a house in which a brothel was operated. For six years …

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