Author Jens Niehl

On August 1, 2022, the new Proof Act will come into force. The law had to be amended to meet the requirements of the EU directive on transparent and predictable working conditions. In the previous version, the regulations were not very relevant in practice. However, the changes are now urging employers to act.

1. The previous legal situation

Previously, the Evidence Act required employers to provide their employees with written evidence of the most important terms of the contract within one month of the start of the employment relationship.

The main points were those that are usually also part of the employment contract: contracting parties, start and duration of the employment relationship, place and time of work, activity, remuneration as well as holiday duration and notice periods.

Accordingly, most employers fulfilled the obligations of the Evidence Act by simply handing over the employment contract

2. What will change as a result of the new law?

The new Evidence Act expands and supplements the catalog of contractual conditions to be communicated. Among others, the following points are added:

• End date or duration of a fixed-term employment relationship
• duration of the probationary period
• Composition and amount of wages including overtime pay, surcharges, allowances and bonuses as well as any special payments
• Rest break, rest periods, explanation of the shift system and regulations, if applicable.

In addition, the obligation to inform is extended to include information on pension provision, further training, overtime and work abroad.

Also new are information requirements on the dismissal protection procedure. In addition to the procedure to be followed, they also include the notice periods and the period for filing an action for protection against unfair dismissal. In addition, at least one reference to the written form requirement must be made. Precise wording is particularly important here.

Formally, it is important that the strict written form applies. At least one signature from the employer is required. In Germany, the proof may not be provided in electronic form either, although the European directive expressly permits this. In fact, this means that employment contracts are only concluded in writing.

In addition, the previously one-month period for submitting the information for essential content of the contract is significantly reduced. In the case of new employment contracts, the company must provide information on the first working day at the latest about the name and address of the contracting parties, the composition and amount of the wages, the agreed working hours and the agreed breaks and rest periods, as well as the shift system, the shift rhythm and the requirements for shift changes in the case of agreed shift work. Further information about the start of the employment relationship, if applicable the time limit, the duration of any agreed probationary period, the place of work, the job description and the possibility of ordering overtime must be provided within seven days. The transcript with the other information according to § 2 sentence 2 of the Evidence Act must be handed over no later than one month after the agreed start of the employment relationship. This includes, for example, the duration of vacation, the procedure for giving notice of termination and the deadline for filing an action for protection against dismissal, as well as information on any applicable collective bargaining agreements and company agreements.

3. Need for action by employers – what should employers do now?

The changes will be relevant for both new and existing employment relationships.

Model employment contracts can be adapted to the requirements by supplementing them with the other required information.

Old contracts that were concluded before August 1, 2022 should not be subsequently adjusted, but employers must submit the essential working conditions in writing within seven days upon request. Because of this short deadline, it is advisable to prepare a corresponding template for such a case, which meets the requirements of the new Evidence Act.

4. What are the legal consequences of a violation?

So far, employees could only ask their employer to make up for the missed proof. A violation now constitutes an administrative offence. The employer faces a fine of up to 2.000 euros per violation. However, the effectiveness of the employment relationship remains unaffected.

Full pot talk with Jens Niehl from September 30.09.2022th, XNUMX

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If the employer dismisses numerous employees at once, he must first inform the employment agency. The law stipulates certain information that must be included in this notice of collective redundancy. Other information "should" only be included.
 
The Federal Labor Court has now decided that this "target information" is not mandatory. If the employer omits them, the terminations do not become ineffective. The lower court saw it differently.
 
That's what the case was about
 
An employee who was dismissed for operational reasons in the course of downsizing had filed a complaint. The company terminated a total of 2019 employment contracts within a month in 17. With this number, it exceeded the threshold of § 17 Para. 1 Dismissal Protection Act (KSchG).
 
If there is a large number of redundancies, the company concerned must inform the employment agency about the forthcoming layoffs. This must be done before the dismissals are announced. If there is no notification of mass redundancies or if it is incorrect, all terminations are ineffective.
 
The plaintiff had also referred to this and asserted that the notification of collective redundancies was incorrect. Finally, the specification of the

• age,
• gender,
• Professional
• and the nationality of the workers to be made redundant.

The law states that this information only "should" be given - and not "must". However, it follows from European law that all information is mandatory. German law must also be based on higher-ranking European law.
 
The competent labor court and state labor court have already agreed with the employee. Spicy about it: Even the employment agency has so far assumed that the information mentioned is not mandatory. Accordingly, the competent authority consistently did not object to the collective redundancy notice in this case either.
 
This is what the Federal Labor Court ruled
 
The Federal Labor Court did not follow the two previous instances. The reasons for the decision are not yet available. The underlying reasons for the argument can be found in the press release.
 
It states that the will of the legislature is clear. The judges inferred this view from the wording, which actually speaks against a mandatory character with the term "should". There is also no other assessment to be found in European law. The Court of Justice of the European Union has already clarified that the relevant directive does not necessarily require the indication of age etc.
 
Conclusion
 
The surprise was great when the first two instances had declared the "target" information to be mandatory. As it stands, the Federal Labor Court is burying this legal opinion for practical purposes. Whether everything actually stays the same - the notification of collective redundancies is also effective without target information - depends on the justification for the decision. This is to be expected in a few weeks.
 
By the way: Recently, numerous dismissals by the airline AirBerlin failed because the employer had sent the mass redundancy notice to an incompetent employment agency. The case shows how carefully employers should proceed here and what defense options employees have. 
 
Background: What are the special features of mass redundancies?
 
There is talk of mass redundancies if so many jobs are cut within 30 days that the relevant threshold in Section 17 (1) KSchG is exceeded.
 
Example: In companies with more than 20 and less than 60 employees, the threshold is exceeded after five layoffs.
 
Caution: Termination agreements initiated by the employer may also be understood as dismissal in this sense.
 
Of course, the usual protection against dismissal also applies in the context of mass redundancies. However, employers must also meet these requirements in particular:

• The works council must be informed in advance in accordance with Section 17 (2) KSchG.
• As already explained in detail, the competent employment agency must be notified of a mass redundancy before the notice of termination is given.
• This must always be supplemented by a statement from the works council and the notification that was made to the works council in accordance with Section 17 (2) KSchG (see above).
• As a rule, the employer is also obliged to negotiate with the works council about a social plan and a reconciliation of interests. This obligation applies regardless of the above threshold, but often coincides with exceeding it.

Again and again, political disputes lead to problems in the employment relationship. The most recent case: A bartender in a luxury restaurant in Baden-Baden had commented on the Russian invasion of Ukraine and generally about Russians in an Instagram video – and was fired for it.

You can read the entire article here read.

Different regulations for employees who are already employed and for people to be hired after March 16.03.2022, XNUMX

With regard to the prescribed procedure for employers, the law differentiates between "already employed" and new employees from March 16.03.2022, XNUMX.

For employees who are already employed, the health department decides on a ban on entry or work

Employees who were already employed before March 15.03.2022, 15.03.2022 must present the management of the practice or facility with either proof of vaccination, proof of recovery or a medical certificate of a medical contraindication to vaccination by March XNUMX, XNUMX at the latest.

However, Section 20a (2) IfSG states that there is no “automatic” ban on employment for employees who are already employed if the relevant evidence is not submitted. In such a case, the employer is obliged to contact the health department immediately and to transmit the personal data (§20a II S. 2 IfSG).

The health department then has to check measures. The health department should also take into account whether sufficient staff would be available if an entry or activity ban were imposed.

In many cases, due to the work overload, the health department will probably first - weeks/months? - don't react at all.

The health department is also required to ask those affected to provide the evidence again.

Only after appropriate action is it then the task of the health department to prohibit the employee concerned from entering the facility or working there.

Can an already employed person continue to work until the decision of the health department?

The Infection Protection Act does not say exactly whether employees who are already employed can continue to work until the decision of the health department. The question cannot be answered clearly. 

However, there is a lot to suggest that the employees concerned can or even have to continue to work until the health department issues a ban on activity or entry. 

According to several reports in the press, some health authorities have also communicated this understanding of the law in this way.

The question of the obligation to work and the right to remuneration will probably also have to be clarified by the labor courts.

No obligation to pay after a ban on entry or activity has been imposed by the health department

From the point in time of the ban on employment, the work cannot be performed if it is not possible to work from home. According to the principle "no work, no pay", this time is not to be remunerated.

Is a personal termination possible after a ban on entry or employment has been imposed?

If it were a permanent ban on entry or employment, the answer to the question would probably be "yes". However, since the law only applies until December 31.12.2022, XNUMX, according to a decision by the health department, there will only be a period of a few months to bridge while the work cannot be performed. However, in companies with more than ten full-time employees, termination is only possible as a "last resort" if the employment relationship cannot be continued in a meaningful way. This question will probably also have to be clarified by the labor courts.

Immediate employment ban for those hired after March 15.03.2022, XNUMX

For employees who are to be hired after March 15.03.2022, XNUMX, the relevant evidence must be available before the start of the activity. If such proof is missing, a separate statement of an employment ban by the health department is no longer required. Rather, the ban on employment applies directly, so that these employees may not be deployed. Consequently, there should be no claim to payment for these persons.

Violations are subject to fines

There is a risk of fines in the event of illegal employment or failure to submit the relevant evidence. This results from § 73 IfSG. The law provides for fines of up to two thousand five hundred euros, particularly in the event of violations of the obligation to provide evidence. Fines of up to EUR 25.000,00 can be imposed for serious violations of the Infection Protection Act.

The law is valid until the end of 2022

The regulation of § 20a IfSG primarily aims to increase the vaccination rate in the affected facilities and companies in the short term. The validity of the law is therefore limited to December 31.12.2022, XNUMX. 

law is in question

The Federal Constitutional Court has now received a large number of constitutional complaints against the institution-related corona vaccination requirement. It is not yet clear when a decision will be made on this. It is likely that the Federal Constitutional Court will deal with it before mid-March 2022. In view of the current situation and the mood in politics, the demands of large hospitals and health institutions as well as some state governments to postpone the entry into force of the law, there is also the possibility that the validity of the law will initially be postponed or that the law on vaccination will be repealed .”

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