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Court ruling burden on businesses

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BERLIN. German employers have to adapt to new barriers to layoffs at the termination of employees. After a recent ruling by the European Court of Justice (ECJ) in the future in the calculation of notice periods even before the 25th Age into account. For employees whose current employment relationship has begun directly after training, can thus prolong the period of notice of up to four months.

The EU judges saw in the German legislation prohibited discrimination on grounds of age. They pointed directly at the German labor courts to have the scheme in current processes disapply "if necessary" (Case C-555/07). Basically, according to Civil Code shall apply, depending on the tenure staggered notice – from two years ago, it is one months, from 20 years seven months. The clause, however, makes life so far that can significantly shorten the time especially with younger workers.

This provision is now being placed directly under the instructions of the Court repealed – even without the German legislator something changes. Martin Nebeling, employment lawyer at Bird & Bird in Dusseldorf, who represented the Respondent in this case before the Court, therefore advises employers now looking at the full employment at enterprise level. "Comforting is for employers only that some incorrectly calculated not lead to the ineffectiveness of notice of termination," said Nebeling.

Sensitive effects on the tariff policy

At the same time the verdict on grounds of principle but also applies to massive lack of understanding among employers. "The Court simply invents legal principles beyond the EU Treaty. He creates an intolerable legal uncertainty, "said Roland Wolf, director of the Department of Labor of the Confederation of German Employers’ Associations (BDA), the Handelsblatt. In fact, private parties could "rely less and less that a written, law passed by the national legislature is also true.

In addition, almost threatening consequences for the foreseeable future tariff policy. For some industries have the statutory rules of notice verbatim into their collective agreements. This applies to the construction industry nationwide, with its 700 000 employees – it is already so badly affected, because a lot of construction workers start at an early age a tribe of employment.

"The ruling should not cause it to extend that now as a result of notice in general," warned Harald Schöer, Managing Director of Construction-Central Association ZDB. "Especially now, the legislature is asked to quickly create clarity and avoid labor market counterproductive consequences," Schroer said the Handelsblatt. On the possible adjustment of collective agreements could usefully be decided only in a second step.

The ruling was based on the complaint of a woman in the 18 Years been employed by an Essen-based company and ten years later was dismissed. It was because of her employment for three years (since the 25th birthday) only allowed one months’ notice. For ten years they would otherwise have been entitled to four months. The ECJ referred to the creation of a legal principle that it derives from the EU anti-discrimination policies: One is based on age discrimination be allowed only if it was justified by a legitimate aim in the areas of employment policy, labor and training. In addition, the funds would need to achieve the goal "be reasonable and necessary".

Labor is preparing changes

The country’s Labor Court Düsseldorf as a court had asked the ECJ whether it could be disputed in the proceedings. The EU court said no: The German scheme was not "appropriate or relevant." They rejected the argument, above all, the employer should obtain a "major personnel management flexibility," because younger workers a greater professional and personal mobility can be expected. This was not the case, because the non-imputation of service before 25 Age, regardless of age applies for a dismissal.

Federal Labor Minister Ursula von der Leyen (CDU) is already preparing a legislative amendment, as a spokeswoman reported on request. More detailed specifications, it would in fact only after further analysis of the appeal. Delicate nature of the project, however, not only because of legal pitfalls, but also in political terms: Chancellor Angela Merkel (CDU) is committed to the principle, not to touch the dismissal. Now, however, makes Europe for an unplanned tightening. The black-yellow coalition must therefore decide whether it accepts this – or about a general reduction of re-balancing of notice.

New edition of the dispute over temporary jobs

What problems can give rise to long notice periods, illustrated ZDB Managing Schröer: construction companies usually have an order range from about six to eight weeks. But not enough that they break only when an order likely to reduce employment substantially delayed. Rather, let himself in such a large time gap between order and drop termination date, in practice, hardly any evidence in court that dismissal was necessary for operational reasons. "In fact, be punished by industries that have a high proportion of permanent staff and can not produce on slope," warns Schröer.

The current verdict on the period of notice is the second spectacular case in which the Court takes the German legislature in employment in the parade. Previously, the EU judges flipped a scheme that facilitated conditions for older workers with temporary contracts who could be employed. The – otherwise prohibited – option of a repeat by appointing temporary contract had been introduced by the SPD-Green government to improve employment opportunities for older workers. The Court stopped this.

Employers also sparked strong resentment from the time the so-called ‘direct horizontal effect "of the ruling, even pre-existing contracts, which was actually agreed to a definite end date, have been transformed by the ECJ verdict into permanent contracts with full protection against dismissal. In his ruling yesterday, the Court reaffirmed this direct effect: Generally, an individual could not rely in their actions directly to the EU directive banning discrimination. The prohibition of discrimination was not a "general principle of Union law". The national court must ensure its "full effect". Therefore the national legislation in such a case should not be applied.

According to BDA-lawyer Wolf this argument requires urgent and fundamental clarification by the Federal Constitutional Court. Responded quite differently to the German Trade Unions. DGB Vice Ingrid Sehrbrock praised the Court ruling, and evaluated it as an urgent call on the government to systematically sift through the German law in a discriminatory rules.

The verdict

Trigger: In Clause 622 of the Civil Code, there is the controversial proposition which will be lifted, the judges in Luxembourg: In paragraph 2, states: "When calculating the period of employment which, before the age of 25 Year life of the employee are not taken into account. For employees whose current employment relationship has begun directly after training, can thus prolong the period of notice of up to four months.

Long debate: Among lawyers, there is some time the debate about whether the dismissal is still altersfixierte European law. The now strong case for explosive caused so already. Even arbeitgebernahe lawyers concede that the Civil Code dating from 1926 this provision was problematic in view of anti-discrimination rules. Now afraid of everything, at some collective agreements, the contracts are similar to the notice of the Civil Code.

Employer proposal: The employers’ demands for new employment should be a choice to be created. After that upon termination of employment occur, alternatively, the statutory protection against dismissal or settlement agreement shall apply.