Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.

Termination

Notice Are employers required to give notice of termination? Employers must observe contractual notice terms or, in the absence of agreed notice terms, the default notice regulations implied by law (or the relevant collective bargaining agreement). The minimum notice period is six weeks. The notice period increases in tandem with seniority, up to five months after 25 years of service.

Redundancies What are the rules that govern redundancy procedures? Once a works council has been established, an employer must notify it of any planned dismissals. The works council has one week to react by:

  • expressly consenting;
  • expressly dissenting; or
  • not commenting.

If the works council expressly dissents, it can contest the dismissal on behalf of the employee as unfair or in breach of considerations of social reasonableness. If the works council remains silent, the employee can still contest the dismissal on the same grounds. Should the works council expressly consent to the dismissal, the employee cannot appeal on the grounds of breach of considerations of social reasonableness, but may still challenge the dismissal by bringing an unfair dismissal claim. If the employee wins, the court will order the employee’s reinstatement.

Apart from this notification requirement, no other formal redundancy procedures exist. In particular, an employer need not provide a reason for terminating an employee. The grounds for dismissal are considered only if the employee challenges the termination based on a lack of social justification, discrimination or otherwise.

Are there particular rules for collective redundancies/mass layoffs? Mass terminations require prior notification to the appropriate government employment agency, which triggers a 30-day waiting period during which any termination is invalid. Employers must consult with the relevant works council and discuss measures in order to avoid dismissals, reduce the number of redundancies and mitigate the consequences of collective dismissals with a view to reaching an agreement on a so-called ‘social plan’ (ie, a collective agreement at the facility level between the works council and employer). A social plan must be concluded where roughly one-third of the employees are affected by the planned measures. In the absence of an agreement on the terms of a social plan, both the employer and works council can call on the special Labour Court Tribunal.

Labour unions usually conduct negotiations on behalf of or jointly with the works council in order to receive financial and non-financial benefits (eg, voluntary severance pay, outplacement assistance, specific pension schemes for older employees and personnel counselling).

Protections What protections do employees have on dismissal? A dismissal need not be for cause, but employers must give prior notice under either the contractual notice terms or, in the absence of agreed notice terms, the minimum statutory notice terms or those set out in the applicable collective bargaining agreement. Employers need not observe notice terms if an employee is dismissed for cause.

The following categories of employee enjoy special statutory protection against dismissal:

  • pregnant women;
  • parents on maternity or paternity leave;
  • members of the works council;
  • apprentices;
  • disabled employees; and
  • employees on military leave.

These types of employee may be dismissed only on grounds defined by law and with the prior approval of the Labour Court or the Disabled Employees Committee. All employees in businesses with five or more employees are afforded general protection against dismissal if the termination has no sufficient social justification.

Click here to view the full article.