The prerequisites of the new GDPR need to be incorporated into the existing German BDSG. A bill has already been drafted and will come into force on the same day as the GDPR (25 May 2018). In particular, infringements of data protection provisions will be punished more severely under the new regulations
As already announced in previous client updates this year, the new Maternity Protection Act (MuSchG) will come into force on 1 January 2018, extending the rights of pregnant employees, students and interns. Employers should, in particular, pay more attention to risk assessment in the future.
The Federal Labour Court deemed that a three-year notice period stipulated in general terms and conditions (AGB) pre-formulated by the employer is invalid, even if the terms also stipulate that the employer must observe the same notice period.
If a business that was supposed to be shut down is subject to TUPE after the employees have already been terminated, they can generally claim re-employment with the acquiring company. However, pursuant to a new ruling of the Federal Labour Court, such claim is generally excluded in case of a transfer of a small business with less than ten employees, as the employees of such business enjoy no protection against dismissal under German law.
Payments for holiday periods, public holidays and supplementary payments for night work need to be calculated on the basis of the statutory minimum wage, regardless of whether the parties contractually agreed on a lower remuneration, which the employer supplemented with a minimum wage allowance in order to comply with statutory law.
An employee who is in negotiations with a competing company of the employer about concluding an employment contract severely violates his ancillary contractual obligations towards his current employer when he forwards a high number of emails with internal company data to his own private email account. Depending on the circumstances of the concrete case, such behaviour can justify an extraordinary termination of the employment
The Labour Court Cologne ruled that it was justified to issue a written warning to an employee who watched a livestream soccer match on an office computer for a period of at least 30 seconds during his working hours, as the employee violated his contractual duties with this behaviour
A turning point in the current jurisprudence is to be expected regarding the employee’s obligation to follow inequitable instructions of the employer as long as they are not deemed inequitable by court. The 10th Senate of the Federal Labour Court intends to assume the position that an employee does not even temporarily have to follow an inequitable instruction of the employer, opposing previous rulings of the 5th Senate. As the 5th Senate now announced that they don’t adhere to their legal view any more, it is to be expected that the 10th Senate will rule as signalized
In this case before the Federal Labour Court, the employer applied a CBA that provided for additional days off for employees who work in shifts. The amount of days employees were entitled to depend on the employee’s age and vary between 2 and 12 days per calendar year. The Federal Labour Court ruled this regulation was age-discriminating and, therefore, the employer was obligated to grant the plaintiff employee the maximum amount of 12 additional days off per year
The Labour Court Cologne ruled that an employee who was released from his duty to work until the end of his employment relationship is still entitled to attend company parties hosted by the employer for all employees during such release, e.g. an annual Christmas party. This entitlement is based on the general principle of equal treatment. Excluding individual employees from company parties would require an objective reason. Such objective reason might be given if the employee disturbed previous company parties