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
Pursuant to recent case law, preclusive periods in employment contracts must exempt claims regarding the statutory minimum wage in order to be valid. The Regional Labour Court of Nuremberg has ruled that a preclusive period that does not fulfil this requirement, is still effective with regard to other claims, aside from minimum wage issues. However, the ruling is controversial and could still be overturned by the Federal Labour Court.
The Federal Labour Court ruled that employee surveillance through the use of software-based key loggers is inadmissible, unless there exists concrete information justifying suspicion of criminal conduct or other significant neglect of duties. Surveillance without such a basis violates the employee’s constitutional right to informational self-determination as well as the Federal Data Protection Act. Any information obtained through such surveillance is inadmissible in labour court.
The Federal Labour Court ruled that a contractual clause only stipulating that a probationary period is agreed, without mentioning any particular notice period to be applied during this time, does not enable the employer to apply the minimum statutory notice period for probationary periods of 2 weeks. In such case, a longer notice period provided in the employment contract for the entire duration of the employment relationship will have to be applied, also during the probationary period.