Dismissal – Employment Germany

THE END OF SPECIAL RIGHTS FOR THE CHURCH?

By Dr. Henriette Norda LL.M. / 16 July 2019 16 July 2019 / Discrimination, Dismissal

1. The problem Equal treatment is not only becoming more and more important since #metoo a few years ago, but has influenced the European Union for nearly 20 years. On June 2000 the Council Directive 2000/43/ implemented the principle of equal treatment between persons irrespective of racial or ethnic origin into European Law. Since then more and more European and German Laws were brought into force to promote equal treatment between the sexes, ethnicities, religions, …

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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

By Thomas Wiedmann / 16 July 2019 16 July 2019 / Dismissal, Termination

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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German Regional Labor Court rules: Employer’s evidence of employee‘s breach of contractual duties admissible even though employer has violated data protection law when obtaining it LAG Baden-Wuerttemberg, ruling dated 6 June 2018 – 21 Sa 48/17 Appeal filed with the Federal Labour Court (Bundesarbeitsgericht), docket no. 2 AZR 426/18

By Dr. Henriette Norda LL.M. / 7 May 2019 11 June 2019 / Data Protection, Dismissal

With its judgment dated 6 June 2018 (docket number 21 Sa 48/17), the Higher Regional Labor Court of Baden-Wurttemberg (Landesarbeitsgericht Baden-Württemberg) found that an employer may use evidence proving an employee’s breach of a contractual duty against the employee, even though the evidence had only been accidentally discovered during a search of the employee’s IT-equipment. The court decided that the evidence could still be used, even if the original search itself was inadmissible pursuant to …

German Regional Labor Court rules: Employer’s evidence of employee‘s breach of contractual duties admissible even though employer has violated data protection law when obtaining it LAG Baden-Wuerttemberg, ruling dated 6 June 2018 – 21 Sa 48/17 Appeal filed with the Federal Labour Court (Bundesarbeitsgericht), docket no. 2 AZR 426/18 Read More »

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 …

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Extraordinary termination due to feigning incapacity for work

By Miriam Hendrich / 3 January 2018 11 June 2019 / Dismissal, Sickness, Termination

On 7 July 2017 the State Labour Court in Cologne (docket number 4 Sa 936/16) decided that a strong suspicion that an incapacity for work is feigned, is sufficient to justify a termination for good cause, in the course of a dismissal on grounds of suspicion, even though a certificate of incapacity exists. In general a certificate of incapacity for work has such strong evidential value that a trial judge is usually entitled to consider …

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Threat to commit suicide or to run amok can justify a dismissal for cause with immediate effect

By Florian Jeske / 21 December 2017 11 June 2019 / Conduct Related Dismissal, Disability, Dismissal, Health, Sickness, Termination

On 29 June 2017 the Federal Labour Court decided that a serious threat of committing suicide or to run amok can be a compelling reason to terminate an employment relationship for cause with immediate effect if the employee thereby seeks to exert pressure on the employer (docket number 2 AZR 47/16). The employee and later plaintiff had been employed by the German federal state of Hesse since 1992 and worked – for most of the …

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Termination only on the basis of suspicion – Basics and difficulties

By Tom Stiebert / 4 October 2017 11 June 2019 / burden of proof, Dismissal, Termination

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 …

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Inadmissible evidence through installation of a keylogger

By Dr. Astrid Schnabel LL.M. / 8 August 2017 11 June 2019 / burden of proof, Conduct Related Dismissal, Data Protection, Dismissal, Termination

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 internet and software use would be monitored. The company monitored keyboard use and also produced screenshots regularly. As a result …

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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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Special case of termination protection: Third parties’ pressure to terminate an employee

By Tom Stiebert / 26 June 2017 11 June 2019 / Dismissal, Termination

The German right of termination is known to be quite strict. A reason for termination is always necessary. It is herefore surprising that such a reason exists even if third parties exert pressure on the employer to terminate the contract (“Druckkündigung”). The basics are presented below. By judgment of 15.12.2016 ( docket number 2 AZR 431/15), the Federal Labour Court of Germany (“Bundesarbeitsgericht”) has now further developed the information and defence duties of the employer …

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Shortened notice period during probationary period requires clear language

By Saskia MacLaughlin / 18 April 2017 11 June 2019 / Dismissal

German law allows a short notice period of two weeks during a probationary period, which can be agreed for up to six months. However, if the employment contract generally provides for a longer notice period, without making clear that this longer notice period only applies after the end of the probationary period, that longer notice period will also apply during the probationary period. Following this judgment by the Federal Labour Court dated 23 March 2017 …

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Dismissal Protection Act not applicable to managing directors despite employee status

By Rodrigo Weihermann / 20 February 2017 11 June 2019 / Dismissal, Employment contract, Executives, Termination, Uncategorized

While recent EU law developments on the potential employee status of managing directors (cf. ECJ, June 9, 2015, docket no. C-229/14 – Balkaya) and decisions of the German Federal Labour Court regarding the procedural issue of giving managing directors access to the Labour Courts under certain circumstances have somewhat blurred the dividing lines between managing directors and employees, a recent decision of the Higher Labour Court of Berlin-Brandenburg seems to bring some clarity to the …

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Circus artists: Employees or independent contractors?

By Dr. Thomas Bichat / 24 February 2016 11 June 2019 / Dismissal, Employment contract, Independent contractor

The Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on 11 August 2015 (docket number 9 AZR 98/14) that where an activity agreed by contract may typically be performed in an employment relationship as well as by an independent contractor, the decision of the parties regarding the type of contract has to be considered as part of the necessary overall balance when assessing the employment status. Individual aspects of the performance of the contract may only change its legal character contrary …

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