Germany has approximately 41 million employees. Some describe their work as a "second family," but even in the best of families, disputes can arise. Questions about employment contracts, maternity protection, and protection against dismissal are common topics in labor law. Before the coronavirus pandemic, labor courts handled 426,000 labor-related lawsuits, which is not surprising. Employment plays a crucial role in quality of life, as it provides a livelihood and consumes a lot of time. Therefore, it is extremely important that employees work in a legally protected work environment.
Labor law governs all legal provisions, regulations, and rules that affect employment. Individual labor law sets out the relevant provisions for employees. These govern the relationship between employee and employer.
If you are wondering what rights and obligations apply to your employment relationship, I would like to give you an overview so that you are well informed.
The employment contract forms the basis of the employment relationship between employer and employee. Through the employment contract, the employee undertakes to perform work in return for payment of remuneration by the employer. The rights and obligations of the employee are primarily determined by the employment contract. The contracting parties can freely structure the employment relationship as they see fit. The employment contract typically contains provisions regarding working hours, probationary periods, fixed-term contracts, vacation, confidentiality obligations, and prohibitions on secondary employment.
In the event that regulations have not been set out in the employment contract, statutory provisions apply, in particular the Civil Code (German Civil Code). However, there are also mandatory legal provisions that cannot be waived by employment contracts.
Minimum wage according to Minimum Wage Act (Minimum Wage Act)
Protection against dismissal under the Dismissal Protection Act (Consumer Protection Act)
Maternity protection after Maternity Protection Act (Maternity Protection Act)
Holiday entitlement in Federal Vacation Act (BUrlG)
Continued payment of wages in case of illness in Continued Remuneration Act (EFZG)
Notice periods in Civil Code (German Civil Code), Vocational Training Act (BBiG), Insolvency Code (Insolvency Code), Federal Parental Allowance and Parental Leave Act (BEEG)
Occupational safety measures in Occupational Safety and Health Act (ArbSchG)
Further provisions arise from regulations (especially those concerning occupational health and safety) and EU directives. However, labor law does not apply to public sector employees such as civil servants, soldiers, and professional judges.
If you would like to review your employment contract or are unsure about your rights and obligations under it, I am happy to assist you. I am also happy to help you identify and eliminate invalid clauses.
Termination is a form of termination of an employment relationship, along with the expiration of a fixed-term employment contract or a termination agreement. A distinction is made between ordinary and extraordinary terminations. Furthermore, it is important to consider whether general protection against dismissal applies.
In the case of ordinary terminations, the notice periods must be observed: this means that the termination has already been declared – the employment relationship continues after the termination until the expiry of the period. An employee can give notice of termination at any time without giving reasons. The notice period is normally four weeks, effective on the 15th of a month or the last day of the month. It should be noted that this is actually four weeks, i.e. 28 days. The employer is bound by longer notice periods, which depend on the length of the employment relationship. While an employee with up to two years of service is entitled to one month's notice period, four months must be given for 10 years, and a maximum of seven months after 20 years.
The law also provides for termination without notice. This terminates the employment relationship without notice. This requires a valid reason and is only permissible if continuing the employment relationship is unreasonable. This applies, for example, to sexual harassment, violence, bullying, or if the employer repeatedly pays wages late.
Questions about deadlines? Unacceptable conditions at work?
In addition to the notice period, the employer must also comply with dismissal protection laws. Dismissals for immoral, discriminatory, or disciplinary reasons are generally prohibited. The employer must inform any existing works council of the dismissal before giving notice of dismissal and may be required to obtain its consent or consult it.
In addition, the German Dismissal Protection Act (KSchG) stipulates special requirements for a valid dismissal. The employer must comply with these requirements if the employee has been employed for more than six months and the company has more than ten employees (for a workforce employed before 2004, the limit is five employees). When determining the number of employees, the following key applies to part-time workers and trainees:
● Employees who work less than 30 hours count as 0.75 employees.
● Employees with less than 20 hours count as 0.5 employees.
● Trainees are not taken into account.
The decisive factor is the length of service, which must be assessed individually even in larger companies, insofar as the company represents an independent unit within the company - particularly with regard to personnel matters.
If general protection against dismissal applies, the employer must provide reasons for the ordinary dismissal. A distinction is made between dismissal based on conduct, operational reasons, or personal reasons:
● A operational This reason applies when operational requirements prevent continued employment – for example, when staff reductions are necessary due to a weak economy. In this case, a social selection must be carried out among comparable employees.
● A personal This reason exists if the employee is no longer able to perform the duties of the job. This could be due, for example, to an injury or chronic illness.
● A behavioral Reasons for termination exist when the employee violates contractual obligations through misconduct. The examples of extraordinary grounds for termination apply accordingly.
In addition, employees in special circumstances enjoy special protection against dismissal, such as pregnant women, employees on parental leave, disabled people, works council members, or trainees. Ordinary dismissal of the employee is excluded in these situations.
The employee can defend himself against the dismissal by filing a wrongful termination lawsuit. This lawsuit must be filed with the competent labor court within three weeks; otherwise, the reason for dismissal is automatically deemed justified.
Another important aspect of employee protection is maternity protection. The Maternity Protection Act (MuschG) in conjunction with the Maternity Protection Ordinance (MuSchArbV) serves to protect the health of pregnant employees. Maternity protection applies from 6 weeks before the expected due date until 8 weeks after the due date. A maternity protection calculator can be used to calculate the duration of the protection period. It is important that the employee informs her employer of the due date. Maternity protection has various effects on the employment relationship. Working hours are limited to a maximum of 8 hours and 30 minutes. On-call duty and night shifts are not permitted during this time. The employer is obligated to organize the workplace to meet the demands of pregnancy. This includes rest periods and the avoidance of dangerous activities. After the birth, the woman is not allowed to work due to an employment ban. During this time, the mother receives maternity benefit to compensate for lost earnings. Maternity protection is designed to protect your health. If your employer disregards important legal protections, you have the right to demand this during your pregnancy.
As a lawyer, I continually educate myself in the evolving field of labor law. To competently represent my clients, it is essential to have a fundamental understanding of labor law. It is important to note that the foundation of labor law—the employment contract—can also be concluded tacitly. Even if the employer and employee have not explicitly agreed on payment, this can be replaced by the mere commencement of work. This is called a real offer, in which the conclusive conduct consists in the fact that work has been started and remuneration has been received. So, anyone who thinks that employment contracts must be in writing is mistaken. As always, the decisive factor is the circumstances of the individual case. This is what makes German labor law so complicated.
My practice in employment law encompasses a wide range of matters. Once you become a client, I will address your case promptly. My services include, in particular, the following activities:
Review of employment contracts for problematic clauses and ineffective provisions
Enforcement of protection against dismissal, for example in the case of maternity protection
Contesting the validity of fixed-term employment contracts
Correction of deficiencies in occupational safety
Assertion of wage claims in the event of payment defaults
Enforcement or contesting of terminations
Preparation and drafting of termination agreements
Structuring severance payments to achieve a legally secure, tax-efficient advantage
Review of employment references and contesting unjustified evaluations
Employment relationships are generally not fixed-term. However, it is possible that the employment contract stipulates a fixed-term contract. According to the Part-Time Fixed-Term Employment Act (TzBfG), such a fixed-term contract is only permissible if there is an objective reason, such as covering for an employee in the event of illness or accident.
According to the German Dismissal Protection Act (KSchuG), you can defend yourself against a dismissal by filing a wrongful termination lawsuit. This lawsuit must be filed with the relevant labor court within three weeks. If this deadline is missed, the dismissal is automatically deemed to be effective.
The immediate termination of the employment relationship between employee and employer occurs through termination without notice. This requires sufficient cause. Furthermore, it must be unreasonable for the employer to wait for the regular notice period. Examples of this include theft or physical assault of employees.
Even if you work less due to the employment ban or during parental leave, your vacation entitlement remains. Taking it will not be postponed until March 31 of the following year; instead, you can take it after the end of your maternity or parental leave.
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