Category: News

Positive development for employers and at the same time a "trap" for employees?

According to the latest figures from the Federal Statistical Office, which refer to the year 2020, around two thirds of labor court disputes end in a settlement. There are usually good reasons for this: Many employees defend themselves against dismissal by filing a lawsuit for protection against unfair dismissal. The procedure can take a long time, resulting in higher costs, the pending procedure impairs the planning security of the parties and the relationship of trust is often very tense. A stressful situation for both parties.

Default of acceptance – risk for the employer

But for the employer in particular, the lawsuit for protection against unfair dismissal entails financial risks. On the one hand, there is protection against dismissal for employees, which takes into account employees' need for social protection and sets high requirements for the effectiveness of a dismissal. On the other hand, there is the threat of “default acceptance wages”: By giving notice, the employer expresses that it will no longer accept the employee’s work after the notice period has expired. If the labor court determines that the termination was ineffective, the employment relationship continues and the employee can assert a claim for additional payment of remuneration for the period after the termination period has expired until the court has made a decision, even though he has not worked. Depending on the length of the procedure, this can extend to several monthly or even annual salaries. But is the salary entitlement always and in full?

employee's obligation to account

No! The threat of delayed acceptance of wages amounting to several months' salary, the avoidance of which motivates many employers to be willing to make comparisons, including high severance payments, has its limits. The employee must be credited for what he has earned through other work or could have earned through other work. Social benefits are also taken into account. But how does the employer find out whether anything is to be credited at all?

Employer's right to information

The Federal Labor Court (BAG) already strengthened the rights of employers in its decision of May 27, 2020 (Az.: 5 AZR 387/19). Here the employee was obliged to inform the employer about the job offers of the employment agency and about his efforts to find a new job. The employer has no other way of legally obtaining information about the employee's obligation to offset and the amount to be offset. That is why the right to information is justified, according to the BAG.

Applications as a "full-time job"

A recent and remarkable decision by the Berlin-Brandenburg State Labor Court (LAG) of September 30, 2022 (Az.: 20 Ca 3918/20) goes even further. Here, too, the employer was able to assert its right to information and found that the employee had received numerous reasonable placement offers from the employment agency, but had not applied or had only insufficiently applied.

The LAG determined that the employee was unemployed during the dismissal protection process and was therefore obliged to make an effort to apply that “corresponds to the time required for a full-time position”. He even has to follow up with potential employers if he has not received an answer to his application. The court dealt extensively with the quality and seriousness of the employee's applications, which it also assessed as insufficient. For these reasons, the court denied the employee any default wages.

Conclusion

It is an open question whether employees who have been dismissed – to put it bluntly – have to spend 40 hours a week trying to apply for a job. Many employees hope for a successful dismissal protection process and have by no means finished with their old job. The opinion of the LAG Berlin-Brandenburg goes very far and it remains to be seen whether the principles set out to the detriment of the employees will be shared by other courts. Nevertheless, in the future employees cannot rely on receiving the full amount of default wages after a successful dismissal protection process, but should carefully examine their other career prospects and consider taking up a reasonable job. The recent development of case law is undoubtedly welcomed from an employers' point of view. The decisions of the BAG and the LAG Berlin-Brandenburg must always be taken into account when deciding how to proceed within the framework of a dismissal protection procedure. This applies equally to employers and employees.

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Two unvaccinated nurses were released from work in the nursing home and complained about it. The Hessian State Labor Court (judgment of August 11.08.2022, 5 – 728 SaGa 22/XNUMX) has now confirmed that the exemption was legal. After that, retirement homes will no longer have to employ their nursing staff who are not vaccinated against Corona.

Background: Compulsory vaccinations for employees in the care and health sector

Since March 15, 2022, there has been a facility-related vaccination requirement in the care and health sector in accordance with Section 20a of the Infection Protection Act (IfSG), according to which employees must have proof of vaccination against the SARS-CoV-2 virus or current proof of recovery. Since then, nursing staff who cannot provide appropriate proof may no longer be re-employed.

However, this direct ban on employment does not apply equally to persons who have already been employed. If they were unable to provide proof of vaccination or recovery by March 15, 2022, the facility management first had to report the case to the responsible health department, which could then issue a ban on employment.

Home management releases unvaccinated carers

In this case, the manager of a retirement home released two unvaccinated nurses from work from March 16, 2022 without an official ban on employment. She also stopped paying.

The retirement home was based on the regulations in § 20a IfSG. On the other hand, the nurses had complained in summary proceedings before the Gießen labor court. At first they asked to be kept employed. The court dismissed the lawsuits in judgments dated April 12, 2022.

Note: As far as can be seen, the employment relationship formally continued. There was no dismissal. 

Unvaccinated carers are not entitled to continued employment

The nurses were also unsuccessful in the next instance.

The LAG confirmed that the exemption was justified and the nurses had no right to continue to be employed in the retirement home. Although § 20a IfSG does not provide for an immediate employment ban for existing employment relationships, the vaccination certificate acts like a professional activity requirement. Consequently, after weighing up the interests, the management of the home was allowed to release the two employees: the employees' interest in being able to go to work speaks for themselves. Employers cannot simply exclude their employees. However, the interest of the residents of the retirement home, who are particularly at risk, to be protected from infection prevails.

With the verdict, both urgent proceedings have ended with legal effect. The main proceedings have not yet been decided.

Outlook: Continued payment of wages during the leave of absence?

The question, which is of interest to both parties, whether wages should continue to be paid for the duration of the leave of absence, could not be decided here. Since the court understands the vaccination as a professional activity requirement, it could be assumed, at least in the case of employees who are unwilling to be vaccinated, that they will not perform their work as owed. Then her right to payment would not continue to exist on a leave of absence.

A final assessment of the decision is only possible when the reasoning has been published and the main proceedings have been concluded.

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.

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