Articles

In a decision of June the Federal Constitutional Court has ruled that the previous case law of the Federal Labour Court regarding previous employment in cases of fixed-term contracts without specific grounds was unconstitutional as it was not in line with provisions of statutory law. The decision is unsurprising, and many legal practitioners had in practice recommended to clients to disregard the Federal Labour Court’s case law as it was far too risky to rely on it.

The Federal Labour Court ruled in June that if provisions in employment contracts contain the requirement to assert claims arising from the employment relationship within a certain period of time for them to not forfeit, such so-called preclusion periods are suspended during settlement negotiations

The State Labour Court of Thuringia ruled on 16 May 2018 that an employee is not generally obligated to make his private mobile phone number accessible to the employer. Such an obligation would interfere with the employee’s right of informational self-determination.

Pursuant to the German Works Constitution Act it is possible to establish a so-called group works councils through resolution of the works councils that operate on the level of the respective subsidiaries. The Federal Labour Court ruled, however, that the establishment of such a group works council either requires that the dominating parent entity has its registered office in Germany or that part of the group management is located in Germany and is provided with substantial authority to decide in social, personnel and economic matters.

The Federal Labour Court ruled that a compensation for works council activities that are pursued outside of working hours can be invalid. A compensation that was paid under such an agreement can be reclaimed even though the employer could have known about the invalidity of such an agreement.

The Federal Labour Court ruled that an employee cannot demand from their employer to terminate a company pension direct insurance contract in order to receive the repurchase value to satisfy personal financial needs.

The Federal Labour Court ruled that if it is possible to assign a different contractual activity, an employer cannot refuse to fulfil its obligation to employ an employee in a specific role under a final court judgment by arguing that such original role has been eliminated.

The Federal Labour Court ruled that the conclusion of a termination agreement with a works council member, which includes a severance payment, does not generally constitute prohibited favouritism even where the employer had originally intended to terminate the works council member’s employment for cause due to serious misconduct.

Under the German Works Constitution Act, it constitutes a criminal offence to obstruct or influence a works council election by inflicting or threatening any unfavorable treatment or by granting or promising any advantage. The Federal Labour Court recently ruled that this prohibition does not go so far that it triggers a strict neutrality obligation of the employer and his executive employees towards the works council and its individual members.