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.
