Originally published February 2010
Extension of the short-time working benefit, Regulation
of 8 December 2009
Pursuant to German Social Security Laws, employees can obtain
short-time working benefits provided by the employment authorities.
These benefits granted by the state compensate to a large extent
the losses the employee suffers from a reduction of working time
due to short-time working. The statutory maximum term for such
benefits is six months. The term can, however, be extended up to 24
months by the German Federal Ministry of Labour and Social
Affairs.
Due to the worldwide economic crisis, by regulations of 29 May
2009, the German Federal Ministry of Labour and Social Affairs had
extended the benefit period to 24 months for such employees who
started working short-time before 1 January 2010. The state
benefits prevented major job losses due to the economic crisis in
Germany that would have occurred by now. Also by its recent
regulation of 8 December 2009, the German Federal Ministry of
Labour and Social Affairs set the benefit period to 18 months for
employees who start working short-time from 1 January 2010 to 31
December 2010. The Federal Employment Authorities have thus reacted
to the still severe impact of the worldwide economic crisis on the
German labour market.
Reported case law
European Court of Justice, Decision of 19 January
2010
The term of the notice periods of employees are set out
in the German Civil Code (section 622) and relate to the
employee's job tenure with the current employer. Depending on
the term of service, the notice periods for the employer may vary
from four weeks to seven months to the end of the calendar month
(if the employment relationship has lasted 20 years with the same
employer). To calculate the relevant job tenure for the notice
period under section 622, a period prior to the 25th birthday of
the employee may not be taken into account. This means, for
instance, that an employee at the age of 28 who started working for
the company at the age of 20 has a job tenure as regards the
calculation of the notice period under the above conditions of only
three years and thus a shorter notice period would apply to his
employment.
In its decision of 19 January 2010, the European Court of Justice
held that the part of section 622 which excluded the job tenure
completed before the employee's 25th birthday from the
calculation regarding the length of the notice period, is age
discriminatory and thus void. In the course of its ruling the ECJ
confirmed that, in addition to its prior case law, national courts
are entitled but not required to make a reference to the ECJ for a
preliminary ruling on the interpretation of the principle of
non-discrimination on grounds of age. So, national courts are
entitled in such cases to also decide – without making a
reference to the ECJ - not to apply provisions of national law
considered to be contrary to European Union law. This is now
supposed to be possible even for cases where there is no space for
interpretation of the law according to the directive. With this
decision, the ECJ has broadened the competency of the national
courts.
Federal Labour Court, Judgment of 17 December 2009
– 8 AZR 1019/08
In February 2009 the ECJ ruled in its "Klarenberg"
judgment that a transfer of business under the Acquired Rights
Directive (ARD) could also take place even if the transferred
business loses its organisational independence with the transferee
as far as a "functional link" between the
"production factors" is retained. This not so easy to
interpret statement of the ECJ put the long established case law of
the German Federal Labour Court (FLC) into question, according to
which a transfer of business required a transfer of an economic
entity or parts of it which retain its identity after the transfer,
where the FLC was relatively strict as regards the question whether
the business unit has retained its identity.
In its recent ruling after the "Klarenberg" judgment of
the ECJ, the FLC stated that it is not a transfer of business, even
though an extensive transfer of equipment has taken place, if the
transferee requires and uses the transferred equipment just
partially due to a substantially modified operational concept. This
is supposed to apply, at the very least, if the transferee has made
substantial modifications regarding the organisation and the staff
structure.
In the case at hand, the transferor had managed three canteens of a
car company. The claimant was one of the kitchen assistants. In
contrast to the former organisation of the canteens, the transferee
no longer prepared freshly made meals but only heated meals which
were delivered by external suppliers, so cooks were not necessary
at all. The FLC held that the former business purpose of preparing
fresh meals had been changed and the kitchen equipment was thus
used in a substantially different manner. The case shows that the
FLC continues its former case law as long as it is not obviously
contradictory to the latest case law of the ECJ.
Federal Labour Court, Judgment of 17 December 2009
– 8 AZR 670/08
According to the German Anti-Discrimination Act (ADA), the
discrimination of an employee is also prohibited in cases where the
discriminating person does not exactly know if the possibly
discriminated employee belongs to the group of employees protected
by the ADA. Thus, questions in a job interview which aim at certain
health impairments may imply the question whether there are any
disabilities which would indicate discrimination.
In the case at hand, the claimant applied unsuccessfully for a job
to assist in academic studies and clinical research with a company
in the field of medical research and development. In the job
interview the plaintiff was asked if he received psychiatric or
psychotherapeutic treatments. He even had to sign that this was not
the case. The Federal Labour Court has referred the case to the
Regional Labour Court to clarify if these questions indicate
discrimination.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.