REFUSAL TO WEAR A FACE MASK CAN JUSTIFY THE DISMISSAL OF A TEACHER

By judgment of 7 October 2021 (docket number: 10 Sa 867/21) the Regional Labour Court Berlin-Brandenburg (Landesarbeitsgericht Berlin-Brandenburg – LAG Berlin-Brandenburg) has rejected the action for protection against dismissal brought by a teacher who refused to comply with the obligation to wear mouth-nose protection 1. Facts In this case, the employment of the claimant teacher …

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THE EVIDENTIAL VALUE OF A CERTIFICATE OF INCAPACITY FOR WORK

By judgement of 8 October 2021 (docket number: 5 AZR 149/21) contrary to the two previous instance decisions, the Federal Labour Court (Bundesarbeitsgericht – BAG) dismissed a claim for continued payment of remuneration. The Court has ruled that the evidential value of the certificate of incapacity for work can be affected in particular if an …

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Employers are not obliged to pay employees in event of a corona lockdown

The Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled on a Corona claim for the first time. By judgement of 13 October 2021 (docket number: 5 AZR 211/21) the Court has ruled that an employer does not bear the risk of loss of work and is not obliged to pay remuneration to employees under the …

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Is it really better to ask for forgiveness than to ask for permission? – yet another update on German Covid-19 legislation

The SARS-Cov-2-Occupational Health and Safety Ordinance ( cf. our blog entry of 23 March 2021 and 22 April 2021 which was due to expire on 10 September 2021 has been amended and extended until 24 November 2021 (“Amended Ordinance”). In recent weeks, public life has slowly opened up in Germany again with a lot of …

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Occupational Pensions: Federal Labour Court outlines principles regarding pension adjustment (cost-of-living adjustment) of a non-profit association

In a judgement of the Federal Labour Court of 23 February 2021 (Bundesarbeitsgericht – BAG; docket number 3 AZR 15/20), the grounds of which were recently published, the court has ruled that with regard to the pension adjustment decision of a non-profit association – in this case a trade union – there are several special …

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Occupational Pensions: Federal Labour Court rules on applicable discount rate regarding the determination of the amount of claims asserted by the German Pension Insolvency Protection Association (PSV)

The Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled on 18 May 2021 (docket number 3 AZR 317/20) that in the case of the PSV’s assertion of claims against the insolvency administrator of an insolvent company, it is not the balance sheet interest rate used for the calculation of the pension provisions that is applicable, …

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Occupational Pensions: The employer’s subsidiary liability does not establish joint and several liability with the external pension provider

The Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled on 13 July 2021 (docket number 3 AZR 298/20) that the employer’s statutory subsidiary liability, according to which the employer is in principle liable for an external pension provider if it does not pay (so-called “Subsidiärhaftung”), does not generally lead to a joint and several liability …

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Occupational Pensions: Federal Labour Court strengthens employee’s claim to disability benefits

By judgment of 13 July 2021 (docket number: 3 AZR 445/20) the Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled that a claim to an (occupational) disability pension exists even if the pension plan presupposes a “permanent disability in the sense of social security law”, but the statutory invalidity pension pursuant to social security law …

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Occupational Pensions: Federal Labour Court raises question of works council’s right of co-determination in CTAs

In a ruling of 20 September 2020 (docket number: 3 AZR 303/18), the Federal Labour Court confirmed that a so-called CTA (Contractual Trust Arrangement) – which is a special trust structure for occupational pensions – is a suitable vehicle for protecting pension commitments against insolvency. In addition, however, the Federal Labour Court has raised another …

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Not in my House – yet another update on German Covid-19 legislation

Accompanied by demonstrations in Berlin, on 21 April 2021, the German Federal Parliament (Bundestag) has passed further legislation as a measure against rising infection numbers. The draft of the legislative act, commonly referred to as the Fourth Act on the Protection Of The Population (“Viertes Bevölkerungsschutzgesetz”, Act), includes regulations for both the private as well …

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Go west – damages for transferring personal employee data to the US?

As part of a judgement dated 25 February 2021 (docket number: 17 Sa 37/20), the Baden-Wuerttemberg Labour Court of Appeals (the second out of three levels of the German labor court system)  has clarified the requirements for an entitlement to immaterial damages in cases of a violation of the General Data Protection Regulation (GDPR). Over …

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Testing, not resting – Obligation to offer tests under the newly amended SARS-CoV-2 Occupational Health and Safety Ordinance

The ongoing quest to combat and prevent the further spread of the SARS-CoV-2 virus is currently impaired by the emergence and propagation of more dangerous virus variants. The Federal Ministry of Labor and Social Affairs (Ministry) has identified frequent testing in occupational environments as a means to prevent the spread of the virus earlier and …

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The Covid-19 Resolution of 22 March 2021 and its implications for employers

The joint video conference of chancellor Angela Merkel and the ministers for the German states resulted in a resolution (“Resolution”) which, at least in part, will need to be implemented by further legislative action at both state and federal level. For employers, the following issues are of relevance: May I open my business and have …

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