Volker von Alvensleben

Works Council’s right to know about work accidents also extends to external staff

By Volker von Alvensleben / 13 August 2019 13 August 2019 / Health, Independent contractor, Works Council

According to a judgment by the Federal Labour Court, the works council may request information about work accidents suffered by individuals who are employed by an external party, if these works accidents were suffered in connection with the operational infrastructure (judgment dated 12 March 2019, docket number 1 ABR 48/17). The company, a delivery service provider, used both its own staff as well as contractors to provide these services. When two contractors slipped and thus suffered injuries at work, the local works council requested copies of the relevant accident reports. In addition, it requested to be informed about work accidents …

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Notices of termination may not be signed before mass dismissal notification has been submitted

By Volker von Alvensleben / 12 December 2018 11 June 2019 / Dismissal, Site closure, Termination, Works Council

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 …

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Limitation of the extension of an employment relationship beyond the statutory age limit is permissible

By Volker von Alvensleben / 5 April 2018 11 June 2019 / Discrimination, Fixed-term employment

The European Court of Justice has ruled that the limitation of the extension of an employment relationship beyond the statutory age limit is permissible and does not constitutes an abuse of fixed-term employment contracts. The case: A teacher in Bremen had reached the statutory retirement age and, according to the applicable collective bargaining agreement, the employment relationship with the city of Bremen would have ended with the achievement of the statutory retirement age. However, the parties agreed to continue the employment relationship until 31 July 2015 and thus deferred the automatic termination of the employment relationship according to section 44 …

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Competencies of Labour Courts for Managing Director Service Contracts

By Volker von Alvensleben / 7 December 2017 11 June 2019 / Managing Director

The regional labour court of Cologne held in an order of 6 October 2017 (docket number 9 Ta 151/17) that the labour court is not competent to hear claims of managing directors, if there are no special circumstances that account for an employment relationship being established. The parties concluded a managing director service contract on 21 July 2015. The first payment was stipulated for the 30 September 2015. The plaintiff claimed to have started with preparatory work for the planned business, and that there was a factual employment relationship from 21 July 2015 onwards. He argued that he had no …

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Employee’s request for fixed-term employment narrowly interpreted

By Volker von Alvensleben / 10 August 2017 11 June 2019 / Fixed-term employment, Pension, Standard contractual terms and conditions of employment

Entering into a valid fixed-term contract can be a bit of a challenge under German law. Under the Fixed Term and Part-Time Employment Act (TzBfG), one of the reasons which may be used to justify a fixed-term contract is that there are reasons relating to the circumstances of the particular employee. A recent case decided by the Federal Labour Court shows that these reasons will be narrowly interpreted (judgment dated 18 January 2017, docket number 7 AZR 236/ 15). Originally, the employee had had a contract that limited her employment to age 65, i.e. the former statutory pension age. When …

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Non-compete clauses – No Compensation for Abstention – Severability Clause

By Volker von Alvensleben / 4 April 2017 11 June 2019 / Employment contract, Post-contractual non-compete

Non-compete provisions valid for the period after an employment relationship has ended are invalid unless the agreement provides for a compensation payment of 50% of the employee’s former salary during the entire duration of the post-contractual non-compete obligation. This decision by the German Federal Employment Court (docket no. 10 AZR 448/15, dated March 22, 2017) was made after a plaintiff filed a claim for monthly compensation for abstention after she had her employment contract terminated. The employment contract itself contained a paragraph in which the parties had agreed on a non-compete for a period of two years after the end …

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What happens to accumulated vacation entitlements when switching from full to part-time work?

By Volker von Alvensleben / 14 August 2014 11 June 2019 / Holidays

On June 11, 2014 the Higher Labour Court of Lower Saxony (Landesarbeitsgericht – LAG) dealt with the disadvantageous recalculation of unused accrued annual vacation when switching from full-time to part-time work. In accordance with a recent decision by the European Court of Justice (ECJ), the court held that when employees change their working hours from full-time to part-time, the amount of vacation not taken may not be adjusted in such a way that the accumulated paid vacation is reduced proportionally to the new working hours. The employee was employed full-time under an employment contract entered into in 2009. In 2010, …

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