Category Archive: burden of proof

Occupational health and safety standards as a limit to the employer’s right to issue instructions

The allocation of a job which does not meet the requirements of Sec. 618 para. 1 German Civil Code (Bürgerliches Gesetzbuch, BGB) in conjunction with the public occupational health and safety standards may nevertheless correspond to the employer’s equitable discretion if it concerns only minor or short-term infringements which cannot cause lasting damage. This is …

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Legal Useability of Recordings from Open Video Surveillance

By its decision of 23 August 2018 the Federal Labor Court (docket number 2 AZR 133/18) facilitated video surveillance at the workplace. Legally and openly created recordings do not have to be deleted by the employer within a few days. According to the Federal Labor Court, they can be evaluated several months later. Under data …

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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, …

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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 …

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Inadmissible evidence through installation of a keylogger

Using a software keylogger may not always be much help in supporting a termination for cause, as a recent case before the Federal Labour Court shows (judgment dated 27 July 2017, docket number 2 AZR 681/16). The employee had worked for the employer since 2011. When opening up its network, the company informed employees that …

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New Act on Remuneration Transparency

Following up our blog post from December 19, 2016 where we reported about a legislative proposal to promote equal pay between women and men, the Remuneration Transparency Act has now entered into force. Arguing that women still earn 7 % less than men even if statistics account for women frequently working part-time, less often climbing …

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Age discrimination within the recruitment process and the burden of proof of justification

By judgment of 15 December 2016  (BAG, docket number 8 AZR 454/15), the Federal Labour Court has ruled that the employer bears the burden of proof for justification within the meaning of sec. 3 para 2 half sentence 2 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) . In the present case, the plaintiff …

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Increase of Working also for Disabled Employees!?

On 26 January 2017, the Federal State Labour Court (Bundesarbeitsgericht) ruled that a disabled part-time employee may not claim damages for discrimination where his employer did not offer him an increase in weekly working hours, unlike his colleagues (docket number: 8 AZR 736/15). In the case at hand, the employer, a courier service provider, employed …

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Who has the burden of proof regarding the claim for continued payment of compensation in case of sickness?

According to German law, employees are entitled to six weeks’ paid sick leave. If the employee continues to be ill due to the same underlying illness, the six-week period will recommence, so long as six months have passed since the end of the employee’s last sick leave, or if one year has passed since the …

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