Tom Stiebert

Change of case law for time limit contracts – Time limit without reason in case of previous employment always inadmissible

  I. General Problems of time limit contracts The agreement on a time limit for the employment contract often leads to problems in practical use. Caution is, however, required, since a fixed term is only permitted under special statutory conditions. If these reasons are not available and nevertheless a – impermissible – time limit is agreed, then the employment agreement with the limited term shall be deemed to have been concluded for an indefinite period of time (sec. 16 (1) Part-Time and Limited Term Employment Act (“Teilzeit- und Befristungsgesetz – TzBfG”). The Part-Time and Limited Term Employment Act enables the …

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ECJ: Death of the employee does not cancel holiday compensation – this also applies to private employers

What happens to open holiday entitlements when the employee dies? It is clear that nobody else – not even the heirs – gets the holiday granted (as free time) . Nevertheless, European and German holiday law provide for compensation for untaken leave in special cases. However, this only occurs if it was not possible to claim the leave. It was questionable whether the death of the employee is such a case. This was already clearly confirmed by the ECJ in a decision in 2014 (ECJ from 12. June 2014 – docket number C-118/13 – Bollacke). I. Compensation for death (and …

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Practical problems with the termination of temporary agency worker

The German law on temporary employment is very strict. In general, temporary agency workers are employees. This means that the temporary worker is protected as well as any other employee. Particularly relevant here is the protection against dismissal. In principle, under German Law an employee can be terminated for operational reasons if the employer cannot employ him anymore due to the loss of his position. In temporary employment, however, the temporary worker is not employed by the temporary work agency as employer itself. Instead, he works for another company. However, if the temporary work agency does not find a company …

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Employment Law in the New Coalition Agreement – What plans does the new German Government have?

Finally, Germany gets a new government – that is sure since the membership decision of the Social Democrats (SPD) ended successfully. Already on 7th February, the SPD and the Christian Democrats (CDU) had agreed on a coalition agreement in which they plan important projects for the next four years. Of course, this 179-page contract also contains some pages on employment law. For this reason, the projects planned in the next few years should be presented here in order to show which way employment law will pursue in the future. Of course, this does not mean that everything is really implemented …

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Time at home can be working hours

As we have already made clear in our article about time for changing clothes, the distinction between working time and rest periods is practically extremely important. The case law of the ECJ is decisive for the demarcation of these areas. Both working time and rest period are terms expressly listed in Article 2 of Directive 2003/88/EC. In a recent ruling (ECJ 21 February 2018, docket number C-517/15), the ECJ has now commented on the more precise definition, continuing its case law from 2000 (ECJ from 3. October 2000, docket number C-303/98 – SIMAP) and 2003 (ECJ from 9. September 2003, …

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The right to extend working hours – sec 9 Act on Part-Time Work and Fixed-Term Employment (TzBfG)

Many employees want flexibility at work; often, this means there is a desire to work part-time (less than 40 hours a week). However the reverse case is also not uncommon; an employee wants to increase his working hours, particularly to earn more money. Both cases are covered by German law. However, there is a claim (currently) only in respect of shortening the working time (sec. 8 TzfG). With an extension the conditions are different. Sec. 9 TzBfG stresses here that a request for extension should be taken into account when filling a vacant position. Thus, if a worker is employed …

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Does the employer have to pay for clothes change times?

Many professions require the wearing of special clothing, whether for hygiene or safety reasons (for example, in a hospital), or to show a particular corporate identity (for example, supermarket vendors). The worker does not wear the clothing because he wants to, but because the employer demands it. This leads to several problems: First, the question arises whether the period of time to change clothes belongs to the daily working hours (which is usually limited to a maximum of 8 hours); on the other hand, it must be clarified whether usual remuneration is to be granted for this time. This is …

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Employer’s financial risks in the event of not granting annual leave

I. Holiday right: Germany and Europe In principle, every employee is entitled to annual leave – as emphasized by German law as well as EU law (Art. 7 (1) and (2) directive 2003/88/EC. In addition, the holiday must be taken during the current year (sec. 7 (3) Federal leave Act (“Bundesurlaubsgesetz – BUrlG”). A transfer to subsequent years is generally inadmissible (sec. 7 (3) BUrlG). Holiday can only be transferred to the following year in special cases and then only to be used within three months. However, employment contracts or collective agreements often provide for the possibility of a longer …

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Temporary workers and thresholds – When does a temporary worker count as a normal employee?

Temporary work is a hybrid in employment law and thus leads to many problems: Although there is an employment contract with the leasing company, the employee works for another company. The question of assignment to one of these companies arises in many aspects of German labor law. In particular, where the number of employees is decisive for legal standards, it must be clarified whether only “normal” employees or also temporary workers are covered. Often, the law links legal consequences to a minimum number of employees in a company: For example, in companies with more than ten employees, special protection against …

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Size (doesn’t) matter – Minimum size for police officers discriminates women

The ECJ ruled in a judgment on 18 October that a uniform minimum size as a requirement for men and women to get a job is inadmissible (docket number C-409/16). A Greek court had asked the ECJ whether “a height (in the case of men and women) of at least 1.70m”, is compatible with Directive 76/207/EEC which prohibits any indirect discrimination on grounds of sex as regards access to employment, vocational training and promotion, and working conditions. “In the present case, the referring court itself found in its decision that a much larger number of women than men are of …

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Hurdles at the temporal limits of work contracts – When is a fixed-term contract valid?

In practice, fixed-term contracts lead to practical problems in a large number of cases. On the one hand, this is because they demand a variety of formalities (see our article from July 24 ). On the other hand, however, it is even more difficult to determine whether it is possible to limit the work contract temporarily at all. Both a limitation with and without reason are acknowledged. Both are apparent from the directive 1999/70/EC concerning the framework agreement on fixed-term work. This includes the following rules: “To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, …

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Termination only on the basis of suspicion – Basics and difficulties

We recently reported on third parties’ pressure to terminate an employee in our blog. This time, too, we would like to take a current judgment (Federal Labour Court of Germany (“Bundesarbeitsgericht”) from 2.3.2017, docket number 2 AZR 698/15) as an opportunity to report on a further special possible termination: a termination based only on suspicion of unacceptable behavior. German law also permits dismissal on grounds of suspected unlawful or unacceptable behavior (if it is a particularly serious suspicion and can be substantiated by facts). This means that the termination is permitted because of a presumed behavior, even if this behavior …

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New to age limits: What is allowed, what is not allowed?

Age limits remain a permanent issue in employment law in Europe. They come into play in different ways: On the one hand, as a maximum age limit for the commencement of a particular career;  on the other hand – even more relevant – as an age limit at which the employment relationship automatically terminates. A third similar case  is the provision of benefits (for example additional leave days) from or to a certain age. All these instances have already been the subject of several decisions of the ECJ, most recently on 5 July 2017 (docket number C-190/16). The reason for …

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Beware of invalid temporal limits of work contracts

The agreement on a time limit for the employment contract is a practice frequently used in Germany, in order to escape the restrictions on the right to protection. Caution is, however, required, since a fixed term is only permitted under special statutory conditions. On the one hand, it is necessary to examine whether there is a material reason for the limitation or if the special conditions for an unconditional limitation, which are strictly limited, are fulfilled. Fixed-term employment contracts can be concluded without a specific reason for up to 2 years provided no previous employment existed with the same employer …

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Change of jurisdiction of the Federal Labour Court of Germany: Consequence of unauthorized instructions

Of central importance in German labour law is the right of the employer to issue instructions to employees with regard to the content, location and time of the work (sec 106 of the German Trade Regulation Act “Gewerbeordnung”). If admissible instructions are given, the employee is obliged to follow them. If he does not follow them,  this is a breach of duty which, in individual cases, may  lead to termination. The situation is problematic, however, when the employer issues an (allegedly) inadmissible instruction. Inadmissibility may result from a number of factors: violation of laws, of collective agreements, work agreements, or …

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