Germany

When releasing an employee from his/her obligation to work with continued remuneration (“garden leave”), which is common in particular in termination cases, employers need to make it sufficiently clear at the time of the release that the release is also intended to compensate a positive balance on the employee’s working time account. A clause only referring to an irrevocable release from the obligation to work without further specifications is insufficient, and does not cover compensation for working time accrued in a working time account

Employees in the so-called “block model” for the old age part-time, which splits the period of the old age part-time into a working phase and a release phase, due not accrue claims for vacation during the release phase of their old age part time, because he/she did not actually perform any work and thus is not comparable to employees who did. This ruling provides legal certainty to employers regarding vacation entitlements of old age part-time employees, and safeguards employers from unexpected payment obligations for vacation days for the period of the release phase

An applicant, who injures himself during a “trial day” at a potential new employer, is covered by statutory accident insurance protection. A “trial day” should enable employers to select a suitable applicant, and therefore has an objective economic value

Fixed-term employment agreements without objective grounds are only permissible under German law for a maximum duration of up to two years. Exceeding this maximum duration by only one day, due to a business trip, leads to an unlimited employment relationship, as a business trip paid by the employer is not part of the employee’s leisure time, but part of the employment relationship and therefore, counts as working time

Following a ruling by the German Federal Constitution Court and changing its previous case law, the German Federal Labour Court had ruled in January 2019, that the limitation of an employment agreement not based on objective grounds is generally invalid if the employee has ever been employed by the same employer before. This case law has now been concretised by a new ruling from August 2019, whereas this prohibition of pre-employment does not apply if an employee is rehired by the same employer 22 years after the termination of his first employment relationship

In order to comply with the latest case law concerning vacation law, the employer will need to provide its employees with substantial information regarding their vacation entitlement to enable the forfeiture of vacation not taken

An employer may be entitled to extraordinarily terminate the employment relationship with an employee, who makes untrue allegations about other colleagues via WhatsApp, which are likely to seriously damage a colleague’s reputation