Thomas Wiedmann

Employee Leasing: Deviation from Equal Pay

According to a judgement of the Federal Labour Court employers (agency) who lease employees (agency workers) to a third party (client) can deviate from the principle of equal treatment (“Equal Pay”) by virtue of a reference clause in the contract of employment only if, for the period of the lease, the relevant collective bargaining agreement for employee leasing fully, and not just partially, applies (judgement dated 16 October 2019, docket number 4 AZR 66/18). The …

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Mass dismissal: Employer has to notify the Employment Agency prior to the delivery of the termination notice to the individual employees

On 13 June 2019, the Federal Labour Court (docket number 6 AZR 459/18) ruled that a mass dismissal notification can be effectively filed even if the employer has already taken the decision to terminate the employment relationships at the time of its receipt by the Employment Agency. In the event of mass dismissals and subject to the fulfillment of all other statutory requirements, terminations, however, would only be effective if the employer notified the Employment Agency …

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Termination agreements: Employees have no right of withdrawal

On February 7, 2019 the Federal Labour Court (docket number 6 AZR 75/18) ruled that employees cannot withdraw a termination agreement even if it was concluded in the private apartment of the employee. In the case at hand, however, the termination agreement might be void if the fundamentals of fair negotiation (Gebot des fairen Verhandelns) have been ignored. The parties agreed to a termination agreement in the apartment of the plaintiff. The termination agreement comprised …

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Mass redundancies: A compensation of disadvantage could be offset by a social plan severance

On 12 February 2019 the Federal Labour Court (docket number 1 AZR 279/17) ruled that a social plan severance and a compensation of disadvantage (Nachteilsausgleich) need to be offset. In March 2014, the employer took the decision to shut down its operation which the plaintiff was employed in. The employer informed the works council about the mass redundancy and tried – at least for a short period – to reach a balance of interest (Interessenausgleich). …

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Job advertisements asking for church membership tend to be discriminatory

In a judgment dated 25 October 2018 the Federal Labour Court (docket number 8 AZR 501/14) ruled that religious employers are no longer allowed to ask all applicants for membership of a Christian church in job advertisements. Unequal treatment on grounds of religion is only permissible if, according to the nature of the activities or the circumstances of their exercise, religion constitutes a substantial, legitimate and justified work-related requirement in light of the ethos of …

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Co-determination right if the employer sets up and operates a Twitter account

In a judgment dated 13 September 2018 the Higher Labour Court of Hamburg (docket number 2 TaBV 5/18) ruled that if the employer operates a Twitter account, at least on the basis of the reply function, the (general) works council has a co-determination right according to section 87 para. 1 no. 6 Works Council Constitution Act (Betriebsverfassungsgesetz). The co-determination right does not require that the technical facility is designed to monitor the performance and behaviour of employees. It …

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Addressing applicants “who are about to graduate”, asking for “very good German and English language skills” as well as a description of being a “young, dynamic company” is in general non-discriminatory

On 23 November 2017 the Federal Labour Court (Bundesarbeitsgericht, BAG) ruled in two parallel proceedings, each with the same plaintiff, on compensation claims for an alleged infringement of the principle of non-discrimination under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) on the basis of two job advertisements. The first position required a completed degree, or that the applicant was about to graduate, as well as very good German and English language skills (docket number …

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Current case law of the Federal Labour Court on forfeiture periods

In June 2018, the Federal Labour Court (Bundesarbeitsgericht, BAG) dealt intensively with forfeiture periods. The judgments addressed: The date when the deadline starts to run (07 June 2018; docket number 8 AZR 96/17); The suspension due to settlement negotiations (20 June 2018; docket number 5 AZR 262/17); and The entitlement for statutory minimum wage during the period of incapacity for work despite forfeiture periods under tariffs (20 June 2018; docket number 5 AZR 377/17). Start …

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Rail Cartel: Which court is competent for recovery claims against a former manager?

This is the first case in Germany in which a company has claimed for recovery from a former manager because he (allegedly) was responsible for the company infringing competion law. The decision of the Federal Labour Court (Bundesarbeitsgericht) was thus eagerly awaited. By judgment of 29 June 2017 (docket number 8 AZR 189/15), the Federal Labour Court annulled the former judgment and referred it back to the court of appeal in order to make further determinations. According to the published press release it could not …

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