Information that “should” be provided when notifying authorities about a mass redundancy is not required for the notification to be valid.
A mass redundancy requires the prior notification of the Labour Agency. The Dismissal Protection Act (DPA) stipulates this obligation and the specific content of such notification. If the Labour Agency is not or is not properly notified, this will result in the dismissals being invalid and employees being able to claim reinstatement. With regard to the content of the notification the law differentiates between elements that “have to” (e.g.: employer’s name, office and type of company, number of planned terminations) and elements that “should” be included (e.g.: gender, age, profession and citizenship of employees who are intended for dismissal).
In the recent past it had been controversial whether the validity of the notification is affected if optional (“should be”) elements are not or are not completely provided. Some courts had held that despite the wording of the law also optional elements are mandatory for the notification to be valid. This resulted in significant extra workload for the employer in preparing the notification.
The Federal Labour Court now ruled that an absence of the elements that just “should” be included in the notification of collective dismissal cannot result in its invalidity. The German legislature’s intent is obvious and even the European Court of Justice ruled that these elements are not required in view of the EU-directive 98/59 either. Therefore, the interpretation in seemingly conformity with the EU-directive 98/59 used by other courts was uncalled for, the notification can thus be valid, nonetheless.
Key Action Points for Human Resources and In-house Counsel
- When it comes to mass redundancy a valid notification of the Labour Agency is crucial. If the notification is invalid or not even filed, all relevant terminations are invalid.
- Mandatory elements of the mass dismissal notification therefore have to be properly and completely provided, whereas the failure to include optional elements will have no legal consequences.