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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Works Council has Right of Co-Determination Concerning Employer’s Twitter Account

On September 13, 2018 the State Labour Court Hamburg (docket number 2 TaBV 5/18) ruled that works councils have a right of co-determination concerning the employer’s Twitter account in accordance with Sec. 87 Para. 1 No. 6 Works Constitution Act as Twitter is a technical device designed to monitor the behaviour or performance of the employees. The respondent in this trial is an employer which operates several cinemas in Germany. It created a Twitter account …

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ECJ Advocate General: Companies are obligated to record daily and weekly working hours

The advocate general of the European Court of Justice is of the opinion that the member states have to pass a law which obliges companies to record the daily and weekly working hours of their fulltime employees, who are not contractually obligated to work overtime hours and who are not mobile employees, employees of the merchant navy or in the railway sector, to ensure the effective implementation of European Directive 2003/88/EG(2). The EU wants to …

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Entitlement to overtime premiums regarding part-time employment

According to a judgment of the Federal Labour Court (Bundesarbeitsgericht, BAG) dated 19 December 2018 (docket number 10 AZR 231/18), part-time employees can be entitled to the payment of overtime premiums with regard to working hours that go past the agreed part-time hours but do not exceed the working hours of full-time employment. In the case in question, the Plaintiff was a part-time employee for the Defendant. A framework collective agreement, which contained regulations on, …

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Occupational Pensions: Federal Labour Court confirmed its ruling with respect to so-called “age difference clauses” in pension arrangements

By judgment of 11 December 2018 (docket number: 3 400/17) the Federal Labour Court has ruled that a so-called “age difference clause” (Altersabstandsklausel) providing that a survivor’s benefit is reduced if the age difference between the spouses is more than 10 years is admissible and is not to be considered as unjustified discrimination on grounds of age. The plaintiff was born in 1945. Her husband was born in 1930 and died in 2014. The spouses …

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

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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Appointment of a Conciliation Committee dealing with the subject of a No Smoking Policy

Under German law, works councils have so-called co-determination rights on certain subjects. This means that an employer must reach an agreement with the works council on these matters, such as rules and policies for employee conduct. Works council co-determination is, however, excluded if there are binding and final statutory provisions dealing with a certain matter. If no agreement can be reached through negotiations between the works council and the employer, a so-called conciliation committee will …

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Right of part-time employees to return to full-time

The German parliament has recently passed a law which amends the current Part-Time and Fixed-Term Act and will likely enter into force on 1 January 2019. Under the new law (so-called bridge-part-time-work), employees have the right to work part-time for a period of one to five years (“Part-Time-Period”) and return to full-time after the Part-Time-Period has expired. This right only applies if (i) at the time of the application the employee has been employed by …

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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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No Automatic Expiration of Holiday Entitlement Due to Missing Holiday Request

Judgments With judgments dated 6 November 2018 (docket number: C-619/16; C-684/16), the European Court of Justice (Europäischer Gerichtshof, EuGH) decided that an employee’s entitlement to paid holiday must not automatically expire due to a missing holiday request. Rather, the holiday entitlement should only expire if the employer is capable of approving that the employee voluntarily waived the holiday after being put in the actual position to take holiday in due time. Therefore the employer has …

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Occupational pensions: No claim for employee to terminate an employee-funded direct life insurance policy

By judgment of 26 April 2018 (docket number: 3 AZR 586/16) the Federal Labour Court has ruled that an employee has no claim against his employer to terminate an employee-funded direct life insurance policy (deferred compensation /salary conversion) in order to receive the surrender value. The employee (plaintiff) concluded a deferred compensation agreement with the employer in 2001. According to that agreement, the employer – as policyholder – was obliged to pay an annual amount of …

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Remuneration of travel time for international assignments

I. Judgment With its judgment dated 17 October 2018, the Federal Labour Court (Bundesarbeitsgericht, BAG) decided that in cases of an employee’s temporary international assignment the employer must remunerate the time required for outward and return travel as work (docket number: 5 AZR 553/17) II. Facts The plaintiff, who is employed by the defendant as a technical assistant, has a contractual obligation to work on domestic and foreign construction sites. Therefore the plaintiff was sent …

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Judgement of the Federal Labor Court Regarding Dismissal due to Frequent Short Illnesses

With its judgment dated 25 April 2018, the Federal Labor Court (Bundesarbeitsgericht, BAG) has maintained its constant jurisdiction, deciding that a disruption relevant for dismissal exists if, according to the employee’s health prognosis, costs for continued remuneration exceeding six weeks within one year are expected in future (docket number: 2 AZR 6/18).   The court had to decide under which conditions the extraordinary dismissal of an employee, whose contract cannot be ordinarily terminated under a …

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Employee data protection: Notification of private mobile phone number to employer

The Higher Labor Court of Thuringia decided that the processing of an employee’s private mobile phone number against his will is an extremely serious interference with the employee’s personal rights and was not justified in the specific case (decision on 16 May 2018 – docket number 6 Sa 442/17). Therefore, the warning issued in this context was ineffective. The employee works for the district in the area of hygiene and infection protection. In the employee’s …

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