Category Archive: Dismissal

Shortened notice period during probationary period requires clear language

German law allows a short notice period of two weeks during a probationary period, which can be agreed for up to six months. However, if the employment contract generally provides for a longer notice period, without making clear that this longer notice period only applies after the end of the probationary period, that longer notice …

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Employer May Ban Employees From Wearing Headscarves

In a recent ruling made on March 14, 2017, the European Court of Justice (ECJ) decided (docket nos. C-157/15, C-188/15) that employers may prohibit staff from wearing Islamic headscarves under certain circumstances. The ECJ held that such prohibitions do not constitute “direct discrimination”; instead, limits on visible religious wear shall be considered permitted under EU …

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Works council’s request to dismiss an employee qualifies as an urgent operational reason for dismissal

Under German law, the works council can request that an employer dismisses or reassigns an employee if the employee has violated the law or has grossly violated principles set forth in sec. 75 of the Works Constitution Act, such as by showing racist or xenophobic behavior in the workplace. If the employer does not comply …

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Boon and bane of social media

Employers often encourage their employees to create social media profiles with platforms like XING or LinkedIn since they will also benefit from the marketing effects. However, using social media may also cause substantial internal conflicts. Such a conflict was recently subject to a ruling by the Regional Labor Court of Cologne (Landesarbeitsgericht Köln, LAG) on …

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Dismissal Protection Act not applicable to managing directors despite employee status

While recent EU law developments on the potential employee status of managing directors (cf. ECJ, June 9, 2015, docket no. C-229/14 – Balkaya) and decisions of the German Federal Labour Court regarding the procedural issue of giving managing directors access to the Labour Courts under certain circumstances have somewhat blurred the dividing lines between managing …

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Release of documents when leaving the company

The State Labor Court of Rhineland-Palatinate (Landesarbeitsgericht Rheinland-Pfalz)  decided on 01.09.2016 (5 Sa 139/16) that the defendant is obliged, according to her employment contract, to hand over all operational working materials and documents, as well as copies and recordings, to the plaintiff when leaving the company. The plaintiff runs an enterprise which trades in rice …

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No extraordinary and immediate termination where employee consumed pastries without payment

The State Labour Court in Baden-Württemberg (Landesarbeitsgericht Baden-Württemberg) decided on 29.12.2015 (10 Sa 32/15) that, even if an employee consumes cakes and pastries belonging to the employer without payment, an extraordinary and immediate termination might be ineffective if it is not certain that the employee has deliberately and seriously broken existing rules if clarification and, …

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No ice behind the steering wheel

The German Federal Labour Court (Bundesarbeitsgericht, BAG; docket no. 6 AZR 471/15) recently had to review a decision made by the Nuremberg Higher Labour Court (Landesarbeitsgericht, LAG; docket no. 7 Sa 124/15) that considered a first-time DUI violation not sufficient for an immediate termination of a truck driver’s employment contract. The Federal Labour Court considered …

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News concerning mass dismissal procedure

On 9 June 2016 the Federal Labour Court (Bundesarbeitsgericht) decided that incorrect information to the Works Council with regard to a planned mass dismissal can be healed by a final statement of the Works Council (docket number: 5 AZR 405/15).   After deciding to close the business down, the Works Council was informed about the …

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Investigations by a Detective create (not only) Data Privacy Issues

The Higher Labour Court of Baden-Württemberg (Landesarbeitsgericht Baden-Württemberg, docket number 4 Sa 61/15) decided on 4 July 2016 that the employer´s instruction of a private detective to investigate its suspicion of unlawful behaviour of its employee infringed German data privacy rules. The detective´s findings must not be used as evidence of the employee´s breach of …

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