By Julia Christina König

Firm:Kliemt.HR Lawyers

This series of articles addresses and corrects some of the most common misconceptions in German employment law. Part Five deals with misconceptions regarding a planned dismissal.

As described in Parts One to Four of this series, many misconceptions relating to German labour law tend to be simply passed on by ‘word-of-mouth’ rather than being critically examined. This series aims to uncover and clarify frequently occurring legal misconceptions. In this fifth part of our series, we present and clarify some issues relating to dismissal and termination.

The works council must approve any dismissal

Not true! For ordinary terminations giving the prescribed period of notice, the employer only has to duly consult the works council on the intended termination. However, the works council's approval is not required for the intended termination to take effect.

Nevertheless, an objection by the works council to an intended termination is not without consequences. If the works council objects properly and in good time for one of the reasons specified in the Works Constitution Act (for example because it believes the person could remain in employment after reasonable retraining or further training measures), the employer must submit the works council statement to the employee together with the notice of termination. In addition, a correctly issued works council objection to the intended termination has the consequence that the employer must continue to employ an employee (at his or her request) who has filed an action for dismissal protection even after his or her notice period expires until the final conclusion of the legal dispute. The works council must communicate its objections to the notice of termination in writing within a period of one week. If it does not respond within this period, consent is deemed to have been given.

Works council's approval is not required for extraordinary dismissals either, unless the termination involves a member of the works council. Any extraordinary termination of a works council member must be approved by the works council before notice of termination is issued. Of course, the works council member concerned is not allowed to take part in the works council’s deliberations on how to respond to the employer's intended dismissal. If the works council refuses its consent to the intended extraordinary dismissal of the works council member, the employer can apply to the competent labour court to overrule this refusal.

Employees can stay home after receiving notice of termination

Not true! Employees are obliged to continue to work during the notice period even after receiving notice of termination. As early as 1955, the Federal Labour Court ruled that employees have a claim to continued employment in terms of their general rights of personality (Federal Labour Court, decision dated 7 November 1955 – 2 AZR 591/54). The general right of personality is a fundamental right that serves to protect an individual against interference in his or her sphere of life and freedom. The court stated that being forced to do nothing due to a lack of employment while still being paid is detrimental to the employee’s image as a full member of the professional community and of society. It is generally considered unworthy for an individual to receive wages that have not been not earned by providing the corresponding services. Even if the wording sounds old-fashioned, this case law has not changed to the present day.

An employer can therefore only release an employee from his or her duties in exceptional cases in which it can invoke overriding interests that are worthy of protection. This is the case, for example, if there are legitimate concerns about divulging trade secrets or the infringement of competition regulations (Regional Labour Court Hamm, decision dated 3 November 1993 – 15 Sa 1592/93). In principle the employer is not automatically entitled to release an employee from his or her duties during the period after notice of termination has been issued. However, employers and employees can of course agree for the employee to be given revocable or irrevocable leave of absence during this period.

At the same time, Section 629 of the German Civil Code (BGB) has to be taken into account. This states that after notice of termination has been issued, an employee is entitled to a reasonable amount of leave to participate in interviews and other selection procedures.

Conclusion

In conclusion, the fifth part of this series on popular misconceptions in labour law demonstrates that an effective termination by an employer does not normally require approval from the works council. In addition, after they have received notice of termination, employees must continue to perform their work duties during their notice period. An employer cannot unilaterally release an employee from work duties without a special reason.

Fifteen common misconceptions in German employment law Part One

Fifteen common misconceptions in German employment law Part Two

Fifteen common misconceptions in German employment law Part Three

Fifteen common misconceptions in German employment law Part Four