Dr. Isabel Schäfer – Employment Germany

A CYCLING ACCIDENT WITH FATAL CONSEQUENCES – REGIONAL LABOUR COURT RULES OVER INJURY AND DISMISSAL

By Dr. Isabel Schäfer / 11 September 2019 11 September 2019 / Dismissal, Sickness

1. The problem Around 20% of all dismissals of employees are subject to legal action. Therefore it is reasonable that employers want to make sure that dismissals are legally sound. One of the most important points in such lawsuits is whether the letter of notice has reached the employee, since the employer must not only prove that he sent the letter of notice, but also that this letter reached the employee, i.e. that he or …

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Fixed-term employment contract for actor in crime series – justified due to the specific characteristics of the work performance

By Dr. Isabel Schäfer / 26 April 2018 11 June 2019 / Fixed-term employment, Uncategorized

According to the Federal Labour Court (Bundesarbeitsgericht, BAG) the employment contract of an actor in a crime series can be fixed-term according to Section 14 para 1 sentence 2 no. 4 of the German Part-Time Employment Act given the factual reason of the specific characteristics of the work as an actor (dated 30 August 2017, docket number: 7 AZR 864/15). The plaintiff, an actor, worked for a production firm in a crime series in the …

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Obligation to provide the works council with salary data does not allow for anonymized lists

By Dr. Isabel Schäfer / 12 December 2017 11 June 2019 / Remuneration, Works Council

Under the Works Constitution Act, the works council has a right to access information regarding the gross salary of employees. Such information is provided to the works council in form of a chart including relevant compensation details. In a case decided by the Higher Regional Labour Court of North Rhine Westphalia – Hamm – (judgment dated 19 September 2017, docket number 7 TaBV 43/17), the employer had, after initial disagreement, provided the works council with …

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Competing activities during notice period can justify an immediate termination for cause

By Dr. Isabel Schäfer / 7 August 2017 11 June 2019 / Conduct Related Dismissal, Dismissal, Standard contractual terms and conditions of employment, Termination

In its judgment dated 12 April 2017 (docket number 3 Sa 202/16), the Higher Regional Labour Court of Schleswig Holstein found that activities for a competitor during an employee’s notice period may justify an immediate termination for cause. Under the employment contract, the employee had committed not to hold any shares of a company in direct or indirect competition with his employer without first obtaining prior approval. In addition, under a statutory non-compete obligation, an …

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Update on reforms of the Maternity Protection Act

By Dr. Isabel Schäfer / 24 April 2017 11 June 2019 / Legislation, Maternity Leave

Following up on one of our blog posts last May, the German Parliament approved reforms of the Maternity Protection Act on 30 March 2017. The reforms are, however, still subject to the approval of the German Federal Council. One of the key changes will be an extension of the scope of protection, as a result of which schoolgirls, interns and students will also be entitled to statutory protection. The period of protection of mothers after …

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Update on German Labour Leasing Laws – Coalition Agreement

By Dr. Isabel Schäfer / 13 May 2016 11 June 2019 / Labour leasing, Temporary Workers

According to Federal Minister Andrea Nahles (SPD), the coalition have now made a breakthrough on proposals to amend the German labour leasing laws. After a meeting of the coalition committee on 10 May 2016, the participants agreed on “clear rules” for employees and employers. They clearly agreed on the principle of “Equal pay for work of equal value” and that no more loopholes will be permitted. The new draft apparently contains provisions relating to companies …

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Damages for harassment at the workplace

By Dr. Isabel Schäfer / 20 April 2016 11 June 2019 / Damages, Discrimination

Unfair treatment at the workplace only qualifies as harassment if it based on continuing hostile and discriminatory behavior that follows a purpose not protected by the legal system and infringes on an individual’s personality or similar rights (judgment by the Higher Labour Court (Landesarbeitsgericht, LAG) Rheinland-Pfalz, 30 November 2015, docket no. 3 Sa 371/15). In this case, the employee sued for damages on the grounds of harassment at the workplace. He claimed that he was …

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Second chance by termination

By Dr. Isabel Schäfer / 21 August 2015 11 June 2019 / Dismissal, Termination

The Higher Labor Court Baden-Württemberg (Landesarbeitsgericht Baden-Württemberg) ruled on 6 May 2015 (ref. no. 4 Sa 94/14) that a termination in the probationary period according to the German Employment Dismissal Act, which extends the applicable notice period, cannot be considered an unlawful circumvention of dismissal protection, where the intention is to give the employee another chance to prove himself. According to sec. 1 para. 1 of the German dismissal protection law an employee is protected …

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Independent contractor or employee – That is the question.

By Dr. Isabel Schäfer / 2 April 2015 11 June 2019 / Employment contract, Independent contractor

Time and again the question arises whether an individual is employed as an independent contractor or as an employee. Under German law there is a thin line between an employee, ie someone who performs services under an employment contract, and an independent contractor, ie someone who performs services on an independent basis. The distinction is even more difficult since is not made on the basis of the underlying contract alone, but on the way the …

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The heat is on….are employees entitled to “Hitzefrei”?

By Dr. Isabel Schäfer / 29 July 2014 11 June 2019 / Holidays, Remuneration

The temperature in Germany has been above 25 °C (77°F) for the past few weeks and many employees might wonder whether they are entitled to a day off due to the excessive heat (“hitzefrei” as it is called in Germany). According to Sec. 3 of the Labour Protection Act (Arbeitsschutzgesetz, ArbSchG), the employer is obligated to take the necessary measures to protect the employee’s health and safety in the workplace. If the employer is not …

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