dismissal

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

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. …

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 »

Termination agreements: Employees have no right of withdrawal

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) …

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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 …

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Dismissal on suspicion (“Verdachtskündigung”) – reasonable time period to give a statement regarding the accusations

On 21 March 2018, the state labor court of Schleswig-Holstein ruled that a valid “dismissal on suspicion” (“Verdachtskündigung”) requires that the affected employee had been granted a reasonable time period to give a statement regarding the accusations (docket number 3 Sa 398/17). A “dismissal on suspicion” is void if the employer issues the notice of …

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

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 …

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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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Competing activities during notice period can justify an immediate termination for cause

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 …

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

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 …

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Shortened notice period during probationary period requires clear language

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 …

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Dismissal Protection Act not applicable to managing directors despite employee status

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 …

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Circus artists: Employees or independent contractors?

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 …

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Internships do not count towards the probationary period for vocational training

A previous internship will not count towards the mandatory probationary period for vocational training in order to effectively shorten the agreed probationary period (judgment of the Federal Labour Court, Bundesarbeitsgericht, BAG, dated 19 November 2015, docket number 6 AZR 844/14). Traditionally, many professions in Germany require a formal vocational training program which commonly takes three …

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Second chance by termination

The Higher Labor Court Baden-Württemberg (Landesarbeitsgericht Baden-Württemberg) ruled on 6 May 2015 (ref. no. 4 Sa 94/14) that a termination in the probationary period according to the German Employment Dismissal Act, which extends the applicable notice period, cannot be considered an unlawful circumvention of dismissal protection, where the intention is to give the employee another …

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Too short a notice period will not render a termination null and void

Even if an employment contract invalidly provides for a notice period of two days and the employer subsequently issues a termination with a two-day notice period, this will not render a termination null and void. The Hamm Higher Regional Labour Court (Landesarbeitsgericht, LAG) was called to rule on the validity of a termination in the …

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Ins and Outs re. Notice Periods and Fixed-Term Employment

Employment relationships may end for various reasons. Two of the most common reasons are termination by either party or the end of a fixed-term contract. An employment contract may be terminated by either the employer or the employee by observing the applicable notice period. Employment contracts may also be concluded for a fixed-term. If the …

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