Bernd Roock Björn Gaul Oral Adenli January 11 2012 Certain groups of employees enjoy special protection from dismissal CMS Germany | Employment & Immigration - Germany Bernd Roock, Björn Gaul, Oral Adenli Employment & Immigration Introduction Pregnant employees and employees on parental leave Severely disabled employees and equivalent persons Works council members and other employee representative bodies Introduction Under German labour law, employees who have served for over six months in an establishment that employs more than 10 employees enjoy statutory protection from dismissal. However, apart from such general protection, there are numerous other provisions that grant special protection against dismissals to specific groups of employees.The special protection against unlawful dismissal does not replace or supersede the general protection; rather, it provides additional protection. This update identifies three groups of employees enjoying special protection against dismissals and which are, in practice, the most relevant to employers. However, these three groups do not give the full picture – for example, members of the following groups may also enjoy additional protection: trainees, employees completing their military or civilian service, company data protection officers and employees holding public office. In all three cases examined below, the special protection from dismissal applies irrespective of an establishment's headcount (ie, it applies even in companies where the general protection against dismissal does not apply).Pregnant employees and employees on parental leave General principle Commencing with the conclusion of employment, the dismissal of an employee during pregnancy or in the first four months following the birth is deemed ineffective if the employer was aware of the pregnancy or the birth, or was unaware of the pregnancy or the birth but gained such knowledge, within two weeks of service of the termination letter. This two-week period may even be extended for reasons beyond the woman's control, provided that notification takes place without undue delay after the obstacle ceases to exist (eg, if the woman herself was unaware of her pregnancy during the specified two-week period through no fault of her own).If an employee enjoys special protection, a dismissal will be permitted only with the explicit prior consent of the authority responsible for ensuring the health and safety of the establishment's employees.Rule As mentioned above, the dismissal of a pregnant employee or a specially protected mother needs the prior consent of the relevant authority. In general, consent will not be given for the termination of an employment contract during the employee's pregnancy or in the first four months following the birth.Exception Only in special cases, which are not connected to an employee's condition during her pregnancy and/or following the birth, can the relevant authority allow an employer's request for dismissal. Unfortunately, the law does not specify the term 'special cases' or the circumstances under which the authority is obliged to declare a dismissal permissible. In fact, the authority's decision is left solely to its reasonable discretion, but one can refer to a regulation regarding parental leave stipulated in an administrative decision (see below).However, fixed-term employment agreements end upon the expiry of the fixed term, even if the employee at that time is pregnant or gives birth to a child within four months of the contract expiring.Ongoing protectionOnce the mother has given birth, both the father and the mother of the newborn child are entitled to unpaid parental leave for a period of up to three years, until the child has reached the age of three. Parental leave is granted at the sole discretion of the employee and is not subject to the consent of the employer. With the employer's consent, the employee may take up to 12 months out of the 36 months' parental leave at a later time, as long as it is taken before the child's eighth birthday. The employee must request parental leave in writing seven weeks before its onset, stating the precise time when he or she wishes to take it within two years of the delivery. An employee who has duly requested parental leave enjoys protection against dismissal similar to that enjoyed during pregnancy.The law stipulates that the employer cannot terminate an employment contract: from the moment that parental leave is requested, but at most eight weeks prior to the start of the parental leave; or during the parental leave. As in the case of pregnancy, the authority responsible for the health and safety of the employees can in special cases, upon the employer's request, declare a dismissal to be permissible. According to an administrative provision, the following in particular may be considered to be special cases: the establishment closing down; grave breach of contract; or intentional criminal acts by the employee. Severely disabled employees and equivalent personsGeneral principle Severely disabled employees and persons of equivalent status also enjoy special protection from dismissal. However, in contrast to pregnant employees, their protection commences not with the employment start date but rather once they have completed six months of employment at the time of service of the dismissal letter (see Social Security Code IX). If this condition is met, any unilateral termination of employment by the employer requires the prior consent of the integration authority. Generally, a dismissal without such consent is ineffective.The requirement for prior consent applies to both ordinary dismissal and summary dismissal without notice (even in instances where the disabled person has perpetrated a crime against his or her employer). There is no exception in cases of mass dismissals for operational reasons: the employer will need the prior consent of the integration authority, not concerning the measure as such but with regard to every single dismissal of a disabled person. However, the expiry of fixed-term agreements is not affected.Rule The authority must comply with some general conditions provided by law, but its decision is in principle subject to its discretion. The reasons and interest of the employer in terminating the employment contract must be balanced against the interest of the disabled person in retaining his or her job. If the intended dismissal is based on grounds that are related to the disability of the employee, the authorities tend to deny consent to the dismissal. By contrast, if there is no or hardly any connection between the disability and the intended dismissal, the authorities are likely to issue their consent.ExceptionOnly under specific circumstances does the law provide for a claim to the authority's consent – for example: if the entire establishment closes down or is dissolved and the dismissal is declared with a notice period of at least three months; or in case of substantial cutbacks, and only if the total number of equivalent persons who remain employed still meets the relevant statutory threshold which is linked to an establishment's size (employers which regularly employ more than 20 employees are obliged to employ a certain number of disabled persons). A further exception exists with regard to summary dismissals: the authority shall grant its consent if the summary dismissal is based on grounds that are unrelated to the employee's disability.Lengthy proceedings possible Should the integration authority deny its consent, the employer may initiate a protest procedure. Further, if the supervising authority does not amend the initial decision, the employer may sue the public authority before the administrative court. However, such proceedings can often be frustrating since proceedings before the administrative court tend to be time consuming and employers must continue to employ and pay the disabled person until the court renders its decision.Should the employer achieve a positive decision by the authority or the administrative courts, this fulfils (only) a precondition regarding lawful dismissal, but the dispute may continue. For example, if the disabled person (depending on the size of the establishment) also enjoys general dismissal protection, he or she may challenge the dismissal before the labour court (eg, on grounds that the dismissal was not socially justified). The previous decision of the administrative court does not hinder such lawsuit; it even has no prejudice, whether legally or factually, as the integration authorities do not check whether the intended dismissal was socially justified. Although this does not happen often, it could take several years to serve a disabled person's proper dismissal and obtain confirmation that the dismissal has in fact terminated the employment in question.Works council members and other employee representative bodies General principle The following also enjoy special protection against dismissal: works council members – during their term in office and for one year after the expiry of that term; works council candidates – from the time of their nomination until six months after publication of the election results; and members of some other employee representational bodies – eg, the election committee or the severely disabled employees' representation body. This special protection ensures that no one from the above groups need fear any repressive measures by the employer when accepting or executing such office. In general, an ordinary dismissal of any and all employees belonging to the above groups is not permitted (see below). Moreover, some members from the above groups can be dismissed only with the prior consent of the works council or its substitution by the labour courts (see below).Rule The employment contracts of all members of the above groups may generally be terminated with immediate effect only for good cause. Typical cases that may constitute good cause include: perpetrating a crime against the employer; divulging business secrets to competitors; persistently and intentionally refusing to work; repeatedly being late for work; and taking absence without leave. Exception Ordinary dismissal of specially protected employees is permitted only if the establishment that employs them closes down. However, the employees shall be dismissed no earlier than the date of closure – unless an earlier dismissal is necessary for compelling operational reasons. The same is true with respect to the closure of a department, provided that it is not possible to transfer the specially protected employees to another department.Additional protection Further, and only during his or her term in office, the summary dismissal of a works council member requires the consent of the works council itself (the ordinary dismissal in case of a closure of the establishment/department does not require such consent). If the works council denies such consent (which is likely in most cases), the labour courts may, on the employer's request, replace such consent on condition that the employer can demonstrate a valid case for which all circumstances are taken into account – an appeal is possible and may take additional time. Following a proper consent that is either granted by the works council or replaced by the labour courts, the service of dismissal is then permissible. Nevertheless, the works council member may challenge such termination by filing a lawsuit with the labour courts. However, unlike in the case of disabled persons, in case of a court decision replacing the consent of the works council, such court decision will then have prejudice regarding any subsequent lawsuit filed by the dismissed works council member.Substitute members of the works council (ie, members who automatically replace regular members when these are unable to attend a works council meeting) also enjoy additional protection during this substitution period. If they then succeed to the works council, they will become regular members and will enjoy the additional protection until their term ends – however, the special protection mentioned above will still last for one year.Similar regulations apply for members of the election committee and the severely disabled employees' representation body.For further information on this topic please contact Oral Adenli, Bjoern Gaul or Bernd Roock at CMS Hasche Sigle by telephone (+49 221 7716 128), fax (+49 221 7716 110) or email ([email protected], [email protected] or [email protected]).