With its judgment dated 21 August 2018, the Higher Regional Labour Court of Baden-Wurttemberg (Landesarbeitsgericht Baden-Württemberg) decided that the dismissal of an employee as part of a mass redundancy is invalid if the notice of termination is signed prior to receipt of the mass dismissal notification to the authority. The time of the receipt of notice of termination by the employee is irrelevant (docket number: 12 Sa 17/18).
Under German law, the Employment Office must be notified prior to dismissals as part of a mass redundancy. This reflects obligations under the Directive 98/59/EC.
The termination at issue was issued as part of a shutdown of an operation. The employer had previously consulted with the works council on the planned shutdown and had entered into a balance of interests on 22 June 2017. Subsequently but on the same day, the employer drafted a mass dismissal notification which the Employment Office received on 26 June 2017. On 27 June, the employee received the termination letter, which was dated 26 June.
According to the Court, a mass dismissal notification must reach the employment agency before the employer reaches the final decision to terminate the employment relationship and before signing the termination letter. Even though the termination letter does not take effect before it has been received by the employee, the employer has already made the underlying termination decision at an earlier point in time, at the latest when signing the letter. The court held, however, that in the specific case it could not be established that the defendant had signed the dismissal notice of 26 June 2017 after the mass dismissal notification had been received by the Employment Agency on the same day. The dismissal was therefore held to be invalid.
Due to the fundamental impact of this judgment, the right to appeal to the Federal Labour Court has been expressly granted.