Termination – Employment Germany

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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Termination agreements: Employees have no right of withdrawal

By Thomas Wiedmann / 28 March 2019 11 June 2019 / Sickness, Standard contractual terms and conditions of employment, Termination

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

By Thomas Wiedmann / 14 March 2019 11 June 2019 / Site closure, Termination, Uncategorized, Works Council

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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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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Practical problems with the termination of temporary agency worker

By Tom Stiebert / 27 March 2018 11 June 2019 / Termination

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 …

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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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The sweet sorrow of parting – 3 year long termination notice period puts employee at disadvantage

By Pascal Kremp LL.M. / 28 November 2017 11 June 2019 / Employment contract, Standard contractual terms and conditions of employment, Termination

German employment law allows the parties to an employment contract to agree a specific notice period in derogation from the statutory standard period as set out in § 622 para. 1 German Civil Code (Bürgerliches Gesetzbuch, BGB), as long as the notice period for an employee does not exceed the notice period for the employer. However, the German Federal Labour Court (Bundesarbeitsgericht, BAG) recently ruled (26 October 2017; docket number: 6 AZR 158/16) that significantly extending the termination notice period …

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Restructuring of a business in Germany – an overview

By Rodrigo Weihermann / 5 October 2017 11 June 2019 / Employee Participation, Termination

Where restructuring measures comprising collective redundancies become necessary, the employer must fulfil a number of legal requirements to successfully implement such measures. While it is sometimes tempting to implement the necessary restructuring in a way that ignores the various legal requirements (e.g. co-determination of the works council etc.), there are only exceptional situations in which such a way does not lead to a total failure of the original plan. For the employer, unlike for 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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Ineffectiveness of a suspicion termination after the disappearance of 115.000 Euro

By Viktoria Leppelmann / 29 September 2017 11 June 2019 / Termination

In order to protect employees from termination where there is suspicion that they have committed a crime, such a termination is subject to very strict conditions. In particular, the probability that the suspected employee is in fact guilty of the assumed crime has to be so high that the suspicion is considered urgent. The urgency of a suspicion can only be assumed if there are no reasons for also suspecting other employees of the committed …

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Employees exempted from their duties are allowed to take part in a corporate event

By Nils Grunicke / 23 August 2017 11 June 2019 / Company Practice, Equal Treatment, Termination

On 22 June 2017 (docket number 8 CA 5233/16) the labour court in Cologne found that an employee is allowed to take part in company outings and events although he is on garden leave. The employee and subsequently plaintiff had been working for the employer, an association that operates retirement homes, for almost three decades. Triggered by a change in the employer’s executive board, the employee agreed to be on garden leave for the last …

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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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