Each type of dismissal requires the fulfillment of specific prerequisites. information and consultation rights, veto and co-determination rights. 5.1 On a business sale (either a share sale or asset transfer) Short-time working is intended to provide temporary economic relief for the company by reducing personnel costs. WebPusch Wahlig Workplace Law Recognized since 2022 Berlin, Germany Practice Areas Labor and Employment Law Thomas Barthel ADVANT Beiten Recognized since 2021 Berlin, Germany Practice Areas Labor and Employment Law Carsten Brachmann Fellaws Muschal Brachmann Rechtsanwlte PartG mbB Recognized since 2019 Berlin, Reasons for not doing so may be, for example, constriction of space, interference by third parties or insufficient equipment. Marianna Karapetyan Ordinary dismissals are subject to certain periods of notice. The employers legitimate interest in the answering of the question must be more important than the interest of the applicant in the protection of his personality rights. Every employee must be provided with a document containing information on the essential elements of his employment contract such as a descriptions of the work, the place of work, initial basic pay, working times, leave entitlements. Instead, German employment law can be found across many types of documents. Of course, the termination by mutual agreement is possible and quite usual. Should we hire employees or independent freelancers? Proceedings before the labour law courts usually last approximately four to six months for the first instance. 3 TzBfG). German Civil Code Buergerliches Gesetzbuch, Part-time and Fixed-term Work Act Teilzeit- und Befristungsgesetz, Employee Leasing Act Arbeitnehmerueberlassungsgesetz, Federal Act on Holidays Bundesurlaubsgesetz, The Maternity Protection Act Mutterschutzgesetz, Other important employment laws in Germany, Parental leave and maternity leave in Germany, Ensure employment law compliance with Horizons, quick overview of general business laws and regulations, a leading global PEO with offices in Germany. The employee can be re-employed after reasonable retraining and further training measures. If an operational change is to be implemented, the employer and the works council must negotiate a reconciliation of interests (Interessenausgleich) and conclude a social plan (Sozialplan). According to 102 Works Constitution Act, the works council must be consulted before any dismissal. Social security in Germany is largely organized in the form of a contributions system in which the risks are borne collectively by all insured persons. With effect from 24 November 2021, the SARS-CoV-2 Occupational Safety and Health Standard has been amended and a 3G regulation in the workplace, which applies generally and is not limited to specific workplaces, has been introduced. Further, we are happy to assist you in any employment law matters as advisors, negotiators as well as implementers. Fixed-term contracts are subject to the restrictions of the German Part-Time and Fixed-term Employment Act (Teilzeit- und Befristungsgesetz TzBfG). The employees may have to raise a claim against unfair dismissal like in any other dismissal case (see above). German employment law puts a strong emphasis on protecting employees. 10.1 Can employers require employees to be vaccinated against COVID-19 in order to access the workplace? In Germany, any mother or father who is in an employment relationship may apply for parental leave. If collective agreements govern the employees conditions of work, these also have to be included. The employer is obligated to inform the works council before hiring or transferring an employee and to submit the necessary documents to the works council. Under the Part-Time and Limited-Term Employment Act (TzBfG), it is also possible for the employer and the employee to conclude a contract for a limited period of time. in case of fixed-term employment: the expected duration of the employment. Works council members enjoy special protection against dismissal for a period of one year following the end of their term of office. In addition to an obligation for the employer to inform the employee about the information processed pursuant to Articles 13, 14 GDPR, employees also have the right pursuant to Article 15 para. Even if you have agreed a piecework rate with your employer, you may not earn less than the statutory minimum wage. In most cases, the members of the organisations of both sides conclude agreements which cover a particular industry within a certain region or within the entire territory of the Federal Republic of Germany. Sexual harassment: if unwanted sex-related behaviour, which also includes unwanted sexual action and asking someone to engage in such behaviour, sex-related physical touching, insinuating comments containing sexual content as well as showing or displaying pornographic illustrations, aims to or causes a violation of a persons dignity, especially if it thereby creates a business environment characterised by intimidation, hostility, degrading treatment, humiliation or insults. Any notice of termination (as well as a termination agreement) regarding an employment relationship must be in writing to be effective as required by 623 German Civil Code. Recent changes to German employment law - as well as the election of a new government - will require employers to take action to ensure that they are compliant with the new legislation in 2022. Election committees and candidates for works council elections ( 15 Act Against Unfair Dismissal). The employer must obtain the consent of the works council before implementing a decision concerning a social matter. Can employers settle claims before or after they are initiated? Statutory constraints with regard to the acquisition and storage of personal data are in place, warranting the protection of the private sphere and the right of self-determination. The most favourable approach to avoid such court proceedings, from an employers perspective, is to settle by way of concluding a settlement agreement. Traditionally, Germany has few rules on whistleblowing and there is no specific act on the subject. If an employer employs more than 10 employees and if the relevant employee has been employed for more than six months, the employer may ordinarily give notice to terminate only if the termination is justified by. If the person does not comply with this request within a reasonable period of time, the public health authority can issue a ban on entry or activity against this person. The objection can be declared to the former employer or to the new owner. are void. 3.4 Are there any defences to a discrimination claim? Thus, they are mandatory and the employee has a direct claim against the employer to comply with the provision of the collective bargaining agreement. The German Civil Code (Buergerliches Gesetzbuch or BGB) is regarded as one of the most influential pieces of legislation in the world. The working week in Germany is set at 8 hours per day, 38-40 hours per week. However, Trade unions in Germany have a history reaching back to the German revolution in 1848, and still play an important role in German economy and society: Approximately 80% of all employment relationships are subject to collective bargaining agreements. They bargain over pay and working conditions (including, for example, notice periods and employment protection for employees with long service), and they may initiate the election of works councils. They construe the labor and employment laws and they are responsible for the case law, which is of high importance in German labor and employment law. The size of the workers council depends on the number of employees in the establishment ( 9 BetrVG). German employment law is often referred to as employee protection law and there are high requirements for unilateral termination of employment by the employer. In order to do so, several statutory requirements have to be fulfilled. Whether the collective bargaining regulation is conclusive and thus excludes the right of co-determination is to be determined by interpretation. They are concluded between the employers association and the trade unions or between a single employer and the trade unions. These key requirements are as follows. If your employer provides accommodation, the cost for this may also be deducted from your wages. Contact us without obligation either by phone or email. Provisions for working hours and the protection of employees undertaking part-time or fixed-term contracts are found within the Part-time and Fixed-term Work Act (Teilzeit- und Befristungsgesetz). Time limitations of up to five years, if the employee is at least 52 years of age and unemployed for at least four months (privilege of elder unemployed persons, 14 sec. ADVICE Please be aware that the employer is responsible for the orderly payment of the social security contributions. To promote employment of severely disabled employees there will be single points of contact at the local integration offices for employers starting from January 2022. Another entitlement for continued payment during absence is stipulated in 616 BGB. How are different types of worker distinguished? Foreign companies not experienced in German labor and employment need to be aware of all legal requirements for staff employed in Germany. Germany. If an employee has not yet been with the company for the waiting period of six months, the Act Against Unfair Dismissal is not applicable. This issue is regulated by the Federal Paid Leave Act (BurlG). From March 2022 on, the German Pension Insurance Federation only reviews, whether an employee is in fact employed or self-employed. 2 KschG). The employer withholds the employees share of social insurance contributions, adds the employers share and then pays the full amount to the respective social insurance carriers. Furthermore, some benefits are free from tax and social security contributions and others e.g. The current rates vary between 15% and 42% plus solidarity tax contribution and church tax if the employee is member of a church. The works council has the right to be involved in personnel matters, e.g., personnel planning, the introduction of employee questionnaires, selection guidelines etc. 613a (4) BGB prohibits the termination of employment due to the transfer of business, but explicitly allows the termination of employment (in connection with the transfer) for other legitimate reasons. "Evaluation: For a long time, the labor law practice mainly focused on advising works councils, but now it is mainly active on the employers' side. Employment contracts are a critical component and must be handled by skilled German labor law attorneys. Your employer must also give you a pay slip. Collective agreements set minimum working conditions, so that more favorable provisions for employees can be regulated in the employment contracts. However, in practice, many companies refrain from doing this for the reason that litigation would result in calling the client to the stand as a witness which may imply the risk of losing the client rather than protecting the business relationship. You can find the leaflet in German at the bottom of this page in the Downloads section. 5.5 Are employers free to change terms and conditions of employment in connection with a business sale? The works council must be informed and consulted about operational changes at an early stage. If the works council raises an objection within the time limit and in due form and if the employee brings an action for protection against dismissal, the employee must continue to be employed by the works council at its request until the final conclusion of the proceedings for protection against dismissal with unchanged working conditions, unless the labour court releases the employer from this obligation at its request because the action for protection against dismissal is without sufficient prospect of success or appears deliberate or the continued employment of the employee would lead to an unreasonable economic burden for the employer or the objection of the works council was obviously unfounded. Employers are obliged to monitor compliance with the above obligations on a daily basis by means of verification checks and to document them regularly. Collective bargaining agreements can be concluded between trade unions on the workers side and employers associations or, rarely, employers on the employers side. Company data protection officer(s) ( 6 Federal Data Protection Act). Difference of treatment in an employment context is permissible within very narrow limits, provided that the characteristics required are genuine and nearly essential for performing the task. Labor, Employment & Pensions. Employment contracts are a well-tested tool to impose obligations on employees that go beyond the legal requirements. If the Anti-discrimination Act has been violated, the affected employee has a claim for compensation against the employer under section 15 AGG (in the case of financial damages) and, under certain conditions, also a claim for damages for pain and suffering (in the case of immaterial damages). If an employee wishes to claim parental leave, he/she must demand in writing that the employer grant parental leave at least seven weeks in advance of commencement, designating the period within two years in which parental leave shall be taken. WebAn employment law guide to employee rights in Germany, covering hours of work, rest breaks and rest periods, Sunday work, holidays and holiday pay, maternity and pregnancy rights, parental leave, carer's leave, force majeure leave, part-time workers, fixed-term workers, temporary agency work, posted workers, transfers of undertakings, insolvency of 4.5 Are there any other parental leave rights that employers have to observe? We are happy to provide you with well-drafted and tailor-made employment contracts at short notice. If more than 2,000 employees are employed, more far-reaching co-determination regulations of the German Co-Determination Act (Mitbestimmungsgesetz) apply. WebCMS sizeable employment law team, also distinguished through its proportion of women at almost 55%, further expanded the partner roster in January 2021 with the appointments o The Act Regulating the Commercial Leasing of Employees. If the works council has objections to an ordinary termination, it must inform the employer of these objections within one week at the latest, stating the reasons, otherwise the works council is deemed to have given its consent. The right to ask for the criminal background is limited to questions about previous convictions that may indicate that the employee is not trustworthy. Employers must provide employees with a notice period. Unlike in other jurisdictions, a valid dismissal will end the employment without the employers obligation to make a severance payment, unless it is part of a collective restructuring measure covered by a social plan agreed with the works council. In Germany, most protection against dismissal disputes end with a mutual termination agreement that provides a severance payment or the extension of the actual applicable notice period. the termination is considered valid from the beginning. 3.8 Are there any specific rules or requirements in relation to whistleblowing/employees who raise concerns about corporate malpractice? Be sure to get acopy of the contractonce you and your employer have signed it. The applicant does not need to tolerate any background checks that go beyond an employers permissible right to ask questions within the limits of the German Equal Treatment Act (AGG) and the personality right of the applicant. the type of the respective undertaking or business; the potential transfer of the material operating resources, such as buildings and movable assets; the value of the intangible assets as of the date of transfer; the potential takeover of the main workforce; the potential transfer of the customer base; the degree of similarity between the activities performed before and after the transfer; and. Our main areas of focus include reorganisations and restructurings, the use of external staff, New Work / Work 4.0, and employee data protection. Most unions and employers associations are organised under umbrella organisations such as the Deutscher Gewerkschaftsbund (DGB), as well as the German Confederation of Employers Associations (BDA). In order to limit or even prevent low-wage competition and to secure jobs of German employees, the Posted Workers Act (AEntG) stipulates that certain German statutes and provisions of collective bargaining agreements, which have been declared to be generally applicable, are also legally binding for foreign employers who post (some of) their employees for work to Germany. Learn more . Our German law firm provides clients with different types of legal services if you wantto invest in Germany. 1 sentence 2 German Commercial Code (Handelsgesetzbuch) includes, according to prevailing opinions, a first indication of an attempt for a definition. At the same time, the jobs of the employees affected are to be retained for the duration of the short-time work. transfers exclusively by an act of public authority. If required, they can still ask the doctor for a sick note in written form. To establish trust, it is useful to have women of the same culture providing the advice. The transfer of a business or part of a business to a new owner by way of agreement is subject to sec. This includes the German Civil Code, various federal legislation, case law exemplars, and collective bargaining agreements, work council agreements, and employment contracts. However, the employer must negotiate "genuinely" with the works council, which, according to case law, also includes at least appealing to the conciliation committee, i.e., an internal mediation committee made up of an equal number of members from the employer side and the works council side. If employees cannot prove that they are vaccinated, the employer must inform the authorities; employees will in this case be prohibited to work and will likely not be able to ask for continued remuneration. Every full-time employee, who has been employed for at least 6 months in the same establishment, can request to work part-time, unless there are generally no more than 15 employees ( 8 sec. An employee must refrain from making public statements that are insulting and damaging to the reputation and credit of the employer. For companies with more than 20 regular employees and a works council, the Works Constitution Act provides specific procedures to be followed with regard to the negotiation of a conciliation of interest and social plan (Interessenausgleich und Sozialplan). Some groups of employees e.g. In contrast, terminations for operational reasons may have to be considered if the shortfall in work is likely to be permanent. Germany Chapter This is a rule of thumb only and, depending on the complexity of the facts or legal questions, the process may take much longer but can also be shorter depending on how busy the competent courts are and if a hearing of evidence is required. However, the transferor may terminate an employee's employment for operational reasons if the employee's job in the company has been eliminated as a result of the transfer and there is no possibility of placing the employee in another vacant job. Notice periods are stipulated by law. Underage close relatives in need of care are also entitled to time off work if care is provided outside the home environment. Co-determination in respectively economic matters ( 106113 Works Constitution Act). Furthermore, the works council of a business unit can assign matters to the company works council. How does a business sale affect collective agreements? Transactional advice includes employment law advice in complex, international technology transactions, M&A projects as well as private equity and venture capital investments, from due diligence to post-closing integration. 3.1 Are employees protected against discrimination? For example, the dismissal of a female employee is prohibited during pregnancy and the four-month period after childbirth if the employer, when giving notice, was aware of the pregnancy or childbirth or if the company is informed thereof within two weeks of receipt of the notice by the employee. Members of the parties to a collective bargaining agreement are bound by the conditions agreed upon. Such action must be filed with the labour court within a period of three weeks after receipt of the written notice of dismissal (including the extraordinary notice of dismissal). Bullying as a very frequent form of harassment increasingly takes place in the work environment. Therefore, a termination of the employment relationship can only be based on personal, conduct-related or operational reasons. Labour law prohibits taking the break at the end of the days work in order to leave earlier. The employer is responsible for forwarding the income tax to the tax authority. Be aware, that limited-term employment contracts must be in writing to be valid ( 14 sec. According to section 1 of the German Collective Bargaining Act (TVG), a collective bargaining agreement is a written contract between one or more employers or employers' associations and one or more trade unions. Bullying is defined as actions violating a persons dignity and lasting for a prolonged period of time, taking place in a targeted manner and systematic way and being geared towards an infringement of personality rights of the bullied person. Thus, in practice the free choice of law is quite limited and usually even if the employer is from abroad the parties apply German labor and employment law. Employees are still obliged to immediately inform the employer of their incapacity to work. In Section 3, the General Equal Treatment Act specifies different forms of discrimination. As a worker from abroad, German labour law applies to you. For example, in the case of non-employment, a claim for compensation of up to three months' salary can be demanded (section 15(2) AGG). Such agreement should i.a. Invalid terminations by the employer will result in reinstatement by the labor court unless the parties agree on a mutual termination agreement that provides for a severance payment to settle a termination dispute. 1.3 Do contracts of employment have to be in writing? There are limitations to how many hours German employees can legally work a week. The primary function of implementing labor laws is to provide equal opportunities to all employees, improve employee well-being and mental health, and provide safe working conditions without harassment or discrimination. Moreover, the employer is obligated to pay the works council members the customary remuneration during the time in which the works council work is completed. General co-determination rights ( 8186 Works Constitution Act). Many employers in Germany offer more holidays than this statutory minimum. Please contact us by e-mail (info@winheller.com) or by phone (+49 69 76 75 77 80). Protection against termination is divided into general protection against termination under the Act on Protection against Dismissal (Kndigungsschutzgesetz) and special protection against termination. Vocational trainees after the probationary period ( 22 Vocational Training Act). For example, labour law gives you An example would be an association which offers advice to migrant women from specific countries. introduction and use of technical equipment and software. If the preconditions for a transfer of undertaking as set out above are met, the employees must be instructed accordingly. According to the Works Constitution Act, employees of business units of an enterprise which regularly employ more than five employees are entitled to set up a works council if at least five of them are older than 16 years of age and therefore qualified to elect and at least three of them are 18 years of age or older and therefore qualified to be elected. 8.4 Are employers entitled to monitor an employees emails, telephone calls or use of an employers computer system? Persons on parental leave ( 18 Parental Allowance and Parental Leave Act). A bank employee may therefore be asked for asset offences but not a nursery worker. Usually, the parties agree upon employment for an unlimited period of time. Germany's leading lawyer ranking JUVE recognizes Andr as ". 613a para. For international companies looking to expand into Germany, whether it be through hiring German employees or setting up a new entity, it is crucial to understand the local employment laws. For example, a job advertisement is indirectly discriminating if it requires German as mother tongue for the work in a market garden. Direct discrimination: a person based on one of the aforementioned discrimination criteria is placed or would be placed at a disadvantage in comparison to another person having equal status. Andr has received several awards for his work, inter alia: Clients recommend Andr to JUVE as straight shooter" and "always refreshingly honest". Hendrik Vlkerding is an Associate in the Dsseldorf office and a member of the Employment Law Practice Group. Sec. Therefore, there is no right of access to discuss general issues of the applicable collective bargaining agreement with the employees at the workplace. In the case of non-employment, such compensation may not exceed the amount of three monthly salaries, provided that the employee would not have been employed even if selection had been executed without discrimination. The employer must inform the works council of all reasons for the dismissal. These principles will take on considerable significance in the current situation Employers must observe the ban on discrimination when publishing job advertisements and also during the application procedure. The same goes for returning from paternal leave. For example, the mere split of an operations into different business units is often not connected with financial disadvantages for the employees. As a rule of thumb, factor x usually ranges between 0.5 and 1.5, depending on the circumstances of the individual case, the employee s role and the business sector, but can be lower or higher, depending on the employees chances of success in a (possible) lawsuit. The works councils rights are of varying intensity, i.e. Furthermore, there may be similar employee participation/consultation on a company or company group level. Since the latter is not necessary for the employer to know, it means a great violation of the employees personal rights. According to 613a para. In practice, where collective bargaining agreements are implemented, employees who are not organized in trade unions are usually treated in the same way as unionized employees. The German Pension Insurance Federation conducts the status determination procedure (Statusfeststellungsverfahren) to determine the status of an individual as an employee or self-employed person. If no agreement is reached even after further negotiations before the conciliation board, this conciliation board will make a final decision regarding the social matter. Under European law the parties to the employment contract are allowed to stipulate the applicable national law. The protection of workers plays a key role in this. 2 TzBfG). Where the Protection against Unjust Dismissal Act (KschG) applies, ordinary dismissals are only allowed for operational reasons, misconduct or personal reasons ( 1 sec. If the test on which the proof of testing is based was carried out by means of nucleic acid detection (PCR, PoC-PCR or other methods of nucleic acid amplification technology), this may not be more than 48 hours ago. Foreign companies not experienced in German labor and employment need to be aware of all legal requirements for staff employed in Germany. 6.9 Does an employer have any additional obligations if it is dismissing a number of employees at the same time? There are strict laws such as those encompassed within the Unfair Dismissals Act that provide strong protections against dismissals. Hire Employees Collective bargaining agreements contains provisions on the content, conclusion and termination of employment relationships as well as on operational and works constitutional issues. German labor and employment law grants a statutory claim for 20 working days vacation per calendar year for employees who work a normal five-day week (i.e., four weeks Many employees bring a claim for unfair dismissal even in the case of a valid termination to exert some pressure on the employer to make a severance payment. Statutes that govern the working time are the Working Time Act (ArbzG), the Maternity Protection Act (MuSchuG) and the Young Workers Protection Act (JarbschG). In the following, we provide a basic overview of the dismissal process in Germany. The objective of this law is to prevent or to remove discrimination based on race, ethnic origin, sex, religion or belief, disability, age or sexual orientation. Minimum labor and employment standards are laid down in separate acts on various labor and employment related issues. 2. For further information please feel free to contact us. Breaks are not considered working time and are therefore not paid. 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