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Agreement of Bundestag and Bundesrat on the new Whistleblower Protection Act

On 09.05.2023, the Mediation Committee of the Bundestag and Bundesrat reached an agreement on whistleblower protection, which was subsequently adopted by the Bundestag and Bundesrat. The compromise contains, in particular, amendments to the reporting channels for anonymous whistleblowers, to fines and to the scope of application of the law. The Whistleblower Protection Act implements the European Directive (EU) 2019/1937 and is expected to enter into force in mid-June 2023 following the agreement in the legislative process. According to this law, companies with 50 or more employees must install and operate secure internal whistleblower systems with a specific procedure. See the press release of the Bundesrat, https://www.bundesrat.de/SharedDocs/pm/2023/005.html.

Employer's duty to provide information on leave II - Federal Labour Court, 31.01.2023, Ref. no.: 9 AZR 85/22

The holiday entitlement of an employee who has been continuously incapacitated for work since the beginning of the holiday year expires on 31 March of the second calendar year following the holiday year even if the employer has not fulfilled its obligations to request and inform. This is because a person who is permanently incapacitated for work cannot take leave, even if the employer had carried out the cooperative actions.

Employer's duty to provide information on holiday leave I - Federal Labour Court, 20.12.2022 - Ref. nos.: 9 AZR 245/19 and 9 AZR 266/20

If an employee is not continuously incapacitated for work in a holiday year, the holiday entitlement from that year that cannot be taken due to incapacity for work only lapses after the expiry of 15 months after the end of the year if the employer has enabled the employee to actually take his holiday in due time before the incapacity for work occurred (see the press release of the Federal Labour Court – only in German language, https://www.bundesarbeitsgericht.de/presse/verfall-von-urlaub-aus-gesundheitlichen-gruenden/). This applies accordingly to the three-year limitation period for holiday claims: This only begins at the end of the calendar year and only if the employer has informed the employee of his or her specific holiday entitlement and the expiry periods and the employee has nevertheless not taken the holiday of his or her own free will (see the press release of the Federal Labour Court – only in German language, https://www.bundesarbeitsgericht.de/presse/verjaehrung-von-urlaubsanspruechen-2/).

Transfer abroad - Federal Labour Court, 30 November 2022 - Ref. no.: 5 AZR 336/21

On the basis of his right of direction under his employment contract, the employer may instruct the employee to work at one of the company's workplaces abroad, unless expressly or impliedly agreed otherwise in the employment contract (see the press release of the Federal Labour Court – only in German language, https://www.bundesarbeitsgericht.de/presse/versetzung-ins-ausland/).

Recording of working time – Federal Labour Court, 13 September 2022 – Ref. no.: 1 ABR 22/21

Pursuant to Sec. 3 para 2 no. 1 ArbSchG (Arbeitsschutzgesetz = Occupational Health and Safety Act), the employer is obliged to introduce and maintain a system with which the working time worked by the employees can be recorded (see the press release of the Federal Labour Court (Bundesarbeitsgericht = BAG) – only in German language, https://www.bundesarbeitsgericht.de/presse/einfuehrung-elektronischer-zeiterfassung-initiativrecht-des-betriebsrats/). What this means for employers in concrete terms is described by the BAG in the reasoning of its decision (see – only in German language – para. 65, https://www.bundesarbeitsgericht.de/entscheidung/1-abr-22-21/) in such a way that there is a leeway for the employer, within the framework of which, among other things, the "form" of the time recording system is to be determined: The time recording system does not necessarily have to be electronic, records in paper form could also be sufficient and the recording of the relevant times as such could also be delegated to the employees. However, it should be noted that improving the safety and health of workers at work are objectives that should not be subordinated to purely economic considerations. Further details are still open, e.g. whether break times must also be recorded or whether executive employees must also record their working hours. The Federal Ministry of Labour and Social Affairs is currently planning to make a proposal for the design of working time recording in the Working Time Act in the first quarter of 2023 (see – only in German language – (s. https://www.bmas.de/DE/Arbeit/Arbeitsrecht/Arbeitnehmerrechte/Arbeitszeitschutz/Fragen-und-Antworten/faq-arbeitszeiterfassung.html). Until then, employers who have not yet recorded the working hours of their employees should record the working hours of their employees with the least possible effort, taking into account the respective operational circumstances (e.g. via Excel or paper lists that the employees fill out), in order to then establish a time recording system that meets the legal requirements after the amendment of the Working Hours Act.