Monthly Archive: August 2016

Offending superiors on Facebook with emoticons does not automatically justify termination of the employment contract

On 22 June 2016 the Higher Labour Court of Baden-Wurttemberg (Landesarbeitsgericht Baden-Württemberg, docket number 1 Ca 290/15) ruled that referring to superiors with emoticons of animal heads – such as in this case a pig’s or a monkey’s head – in a conversation among employees on Facebook may be an insult, but was not sufficient …

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Court can decide amount of bonus where there has been an inequitable exercise of employer’s discretion.

The plaintiff worked in a major bank – the defendant – as Managing Director from January 2010 until the end of September 2012. It was agreed by contract that the plaintiff would participate in the bonus system and/or in a deferral plan. On the basis of this agreement, the plaintiff received an achievement bonus of …

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Who has the burden of proof regarding the claim for continued payment of compensation in case of sickness?

According to German law, employees are entitled to six weeks’ paid sick leave. If the employee continues to be ill due to the same underlying illness, the six-week period will recommence, so long as six months have passed since the end of the employee’s last sick leave, or if one year has passed since the …

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EU anti-discrimination law does not apply to artificial applications

The European Court of Justice (ECJ) ruled on 28 July 2016 (docket number: C-423/15) that a person cannot claim discrimination protection if the person is artificially applying for a post with the essential aim of not actually taking up that post but only in order to bring claims for compensation. The plaintiff (Mr Kratzer) has …

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Strikes Against Industrial Peace Provisions Unlawful, Says Federal Court

As airport and airline strikes have become an almost annual event, in a landmark decision the Federal Labour Court (Bundesarbeitsgericht, BAG) has ruled on the obligation to pay damages in the event of an unlawful strike (judgment dated 26 July 2016, docket number 1 AZR 160/14).. The relevant strike occurred in 2012 when the Air …

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Can someone be dismissed for wearing an Islamic head scarf?

According to an Advocate General’s opinion to the European Court of Justice (dated 13 July 2016, C-188/15 Bougnaoui and ADDH v. Microple SA) a company policy requiring an employee to remove her Islamic headscarf when in contact with clients constitutes unlawful direct discrimination. Ms Bougnaoui is a Muslim woman who was employed as a design …

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Accident insurance cover applied during departmental Christmas celebration without management

The Federal Social Court (Bundessozialgericht) decided on 05 July 2016 (Az.: B 2 U 19/14 R) that participation in a works communal event is also covered by accident insurance cover if it is carried out by the management of the subject area. Contrary to former case law, personal participation of management is no longer necessary …

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A consent order of the New York Department of Financial Services does not in itself justify a dismissal

The state labor court of Frankfurt (Landesarbeitsgericht Frankfurt) ruled on 13 July 2016 (docket number: 18 Sa 1498/15) that a dismissal of an employee by a major financial institution at the behest of the New York Department of Financial Services (NYDFS) is invalid. The dismissal has to be justified based on German labour law. The financial institution …

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Fixed-term probationary assignment of “higher” and more demanding tasks

On 24 February 2016, the Federal Labour Court (Bundesarbeitsgericht) ruled that the validity of a fixed-term probationary assignment of “higher” and more demanding tasks has to be evaluated under Sect. 307 Subsect. 1 German Civil Code (“BGB”), which states that an agreement is invalid, if it leads to an “unreasonable disadvantage” for the other party …

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No accident insurance cover between home office and kitchen

The Federal Social Court (Bundessozialgericht) decided on 5 July 2016 (Az.: B 2 U 2/15 R) that an accident on the way from the home office to the kitchen in an employee’s apartment to have a glass of water does not qualify as a workplace accident and is thus not covered by the statutory accident …

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