Remuneration of travel times to a workplace abroad, German Federal Labour Court (Bundesarbeitsgericht = BAG), 17.10.2018, 5 AZR 553/17
If the employer temporarily dispatches the employee to work abroad, the times required for the return trip must be remunerated as work because such journeys to and from the external workplace take place exclusively in the interest of the employer and are therefore usually to be remunerated as work. In principle, the travel time required for a flight in Economy Class has to be remunerated.
(No) Inadmissibility of the use of data from open video surveillance, German Federal Labour Court (Bundesarbeitsgericht = BAG), 23.08.2018, 2 AZR 133/18
The employee worked in a tobacconist and newsagent shop with an affiliated lottery acceptance. The employer had installed an open video surveillance system in the shop. With the records, he wanted to protect his property from crime by both customers and his own employees. In the third quarter of 2016, he noticed a shortage of tobacco products. The analysis of the video recordings in August 2016 showed that the employee did not put money collected into the cash register on two days in February 2016. The employer terminated the employment relationship extraordinarily without notice.
The Higher Labour Court had judged in favour of the employee holding that the findings from the video recordings were not admissible in court as evidence because the employer should have deleted the recordings immediately, at least clearly before 1 August 2016. The Federal Labour Court did not agree with the Higher Labour Court: If the open video surveillance was lawful, the processing and use of the pertinent image sequences according to Sec. 32 para. 1 sent. 1 of the German Federal Data Protection Act (Bundesdatenschutzgesetz = BDSG) in its former version (now: Sec. 26 para. 1 sent. 1 BDSG) would have been permissible. The employer did not have to analyse the image material immediately. He was allowed to wait until he saw a legitimate cause. Should the video surveillance have been lawful, the provisions of the European General Data Protection Regulation (GDPR), applicable since 25 May 2018, would not preclude the use of the applicant's personal data as evidence by a court of law. The mere passing of time does not turn disproportionate the storage of image sequences from a legitimate open video surveillance system, which shows intentional acts of an employee at the expense of the employer's property, as long as the punishment of the breach of duty by the employer is possible under labour law.
An open video surveillance is lawful if the processing and use of personal data is appropriate, necessary and reasonable in the light of the guaranteed freedoms to achieve the intended purpose. There must be no other means that are equally effective in achieving the objectives and less restrictive of the personal rights of those affected. Proportionality in the narrower sense (appropriateness) is respected if the severity of the interference in an overall balance is not disproportionate to the weight of the reasons justifying it. The processing and use of data must not be an excessive burden on the data subject and must be commensurate with the importance of the information interest of the employer. This has to be assessed separately for each personal date.
Industrial action - Premium for strike-breaking as admissible means in an industrial action, German Federal Labour Court (Bundesarbeitsgericht = BAG), 14.08.2018, 1 AZR 287/17
An employer whose employees are on strike is in principle entitled to try to prevent workers from participating in the strike by promising a (special) premium to those employees who work while others are on strike.
The plaintiff is employed as a full time shop assistant/seller by the defendant retailer. In 2015 and 2016, several of the plaintiff’s colleagues went on strike for several days. The strike was called by the Union “ver.di” (= Vereinte Dienstleistungsgewerkschaft = “United Services Union”) with the aim to enter into a collective agreement for the acceptance of regional collective agreements for the retail sector. Before the start of the strike, the employer promised in a company notice that all employees who do not take part in the strike and carry out their normal duties would be paid a strike-breaking premium. This was initially promised per strike day in the amount of 200 € gross and in a second company notice in the amount of 100 € gross. The plaintiff, who received a gross monthly income of 1,480 €, followed the union strike call and did not work on several days. With his lawsuit he pursues the payment of the strike-breaking premiums to him – totalling 1,200 € gross –, based mainly on the labor law principle of equal treatment.
The plaintiff was unsuccessful in all instances. The promise of the strike-breaking premium payments to all workers willing to work by the employer differentiates between the striking and non-striking workers. However, this differentiation is justified for reasons of the law governing industrial actions. With the voluntary strike-breaking premiums, the employer wanted to counter operational disturbances and thus counteract the strike pressure. Against the background of the freedom of means in an industrial action which applies to both “social opponents” (i. e. the employer as well as the union), voluntary strike-breaking premiums are in principle an admissible measure of the employer in an industrial action for which the proportionality principle applies. Before that backdrop, the promised strike break premiums were not inappropriate, even if they exceeded the daily earnings of strikers several times.
Limitation of multiple time-limited employment contracts without a substantive reason in principle constitutional; therefore, the German Federal Labour Court’s rule that if an employment relationship has ended more than three years ago, the parties may enter into a new time-limited employment contract without a substantive reason is not in accordance with the German constitution, Federal Constitutional Court (Bundesverfassungsgericht = BverfG), 06.06.2018, 1 BvL 7/14 and 1 BvR 1375/14
According to the provision of Sec. 14 para 2 sent. 2 of the German Part-Time and Fixed-Term Act (Teilzeit- und Befristungsgesetz = TzBfG), time-limited employment contracts without a substantive reason between the same contracting parties are limited to the initial establishment of an employment relationship; this means that any new time-limited employment contract without a substantive reason with the same employer is prohibited by law. This limit is in principle compatible with the constitutional requirements, because the prevention of multiple time-limited employment contracts and the safeguarding of permanent employment as a regular employment form takes into account the duty of the state to protect the structurally weaker employees in the employment relationship and also the constitutional welfare state principle.
The Federal Labour Court’s interpretation of Sec. 14 para 2 sent. 2 TzBfG, which allows a new time-limited employment contract without a substantive reason with the same employer whenever a period of more than three years between the employment relationships has lapsed (Federal Labour Court, 06.04.2011, 7 AZR 716 /09), is not in accordance with the German Constitution, the “Grundgesetz” (Basic Law). Judicial interpretation may not ignore the clearly identifiable will of the legislator and replace it with its own regulatory model. Here, the legislator clearly decided against such a deadline of three years.
Thus, any previous employment with the same employer, even if more than three years have lapsed since its termination, must be regarded as a "pre-employment" within the meaning of Sec. 14 para 2 sent. 2 TzBfG, which prohibits any new time-limited employment contract without a substantive reason.
No group works council if the top management of the group is located abroad, German Federal Labour Court (Bundesarbeitsgericht = BAG), 23.05.2018, 7 ABR 60/16
According to Sec. 54 para 1 sent. 1, para 2 of the Works Council Constitution Act (Betriebsverfassungsgesetz = BetrVG) the joint works councils of the group companies or works councils of operational sites can pass resolutions to establish a group works council for a company group according to Sec. 18 para. 1 of the German Stock Corporation Act (Aktiengesetz = AktG). If the controlling company is domiciled abroad and there is no sub-group headquarter in Germany with substantial decision-making powers in personnel, social and economic matters, a group works council cannot be established.
The parent company is headquartered in Switzerland. It is the sole shareholder of a subsidiary in Germany that acts as the financial holding company. The financial holding company does not undertake any operational business and does not have its own employees, but has several "operational" subsidiaries, vis-à-vis which it does not exercise any management functions. Instead, the directors of the "operational" subsidiaries report directly to the parent company in Switzerland, and receive instructions with respect to personnel, social and economic matters only from the Swiss parent company. The works councils of the "operational" subsidiaries had decided to set up a group works council. The parent company and the financial holding company believe that a group works council cannot be established due to the territoriality principle if the controlling company is based abroad.
The Federal Labour Court agreed with them. The Group Works Council is not effectively established, as the parent company is the controlling company in Switzerland and there is no sub-group in Germany that has significant management responsibilities in personnel, social and economic matters. The financial holding does not perform such functions.
No transfer of business in the absence of change of “economically” responsible person, German Federal Labour Court (Bundesarbeitsgericht = BAG), 25.01.2018, 8 AZR 338/16
The plaintiff, the (supposedly) "former" employer of the defendant employee ("EM"), seeks to establish in court that there is no employment relationship between them because the employment relationship originally established between them would have been transferred to a newly established company ("Company") as a result of a transfer of business. The defendant EM was employed as a locksmith since 1976 in the plant of the plaintiff in Berlin, which operated two further plants. In March 2011, the plaintiff and the Company entered into an agreement according to which the Company will continue to operate the plaintiff’s complete production at all three plants with the employees working there from 01.04.2011 and take over the management of the plaintiff’s business operations at all plants. In addition, the plaintiff and the Company agreed that the Company produces solely for the account and in the name of the plaintiff and the plaintiff granted the Company a general power of attorney. The plaintiff and the Company had informed all employees that their respective employment relationships would be transferred to the Company at the end of 31.03.2011 as a result of a transfer of business.
At the end of March 2014, the Company terminated the employment relationship with EM due to the shutdown of the Berlin plant. The EM's lawsuit against this dismissal was finally legally rejected. The EM then demanded that the plaintiff acknowledges that there is still an employment relationship between them beyond 31.03.2011, which the plaintiff denied.
The BAG dismissed the action and ruled that there was an employment relationship between the plaintiff and EM. According to the BAG, EM’s employment relationship was not transferred to the Company under a transfer of business pursuant to section 613a Sec. 1 sentence 1 of the German Civil Code (Buergerliches Gesetzbuch = BGB) and therefore continued with the plaintiff. It would be a prerequisite for a transfer of business pursuant to section 613a Sec. 1 sentence 1 of the German Civil Code that the natural or legal person responsible for the operation changes under the contractual provisions. That condition would not be fulfilled here, since the plaintiff had not relinquished its responsibility for the operation to the Company. Therefore, the information letter on the (supposed) transfer of business which was sent to the employees three years was factually incorrect and the EM could assert this despite the fact that three years had lapsed (finally, it was irrelevant for the BAG that EM’s dismissal protection suit against the Company had been legally rejected).
No liability of the employer for vaccine damage, German Federal Labour Court (Bundesarbeitsgericht = BAG), 21.12.2017, 8 AZR 853/16
The defendant employer ("AG") operates a medical centre for heart diseases, the plaintiff employee ("EM") was employed there in the controlling department. The AG had employed a doctor under a freelance employment contract as a company doctor. The company doctor called all of the AG’s interested employees to take part in a flu vaccination, whose costs were borne by the AG. The EM took part in the company doctor’s flu vaccination at the premises of the AG and has now claimed that she had suffered a vaccine damage for which the AG was liable, in particular because she had not been properly informed prior to vaccination.
In her lawsuit, the EM demands a compensation for immaterial damages (pain and suffering) from her AG and seeks a court order that the AG is obligated to reimburse her for all material and immaterial damages that she will incur from the flu vaccine in the future.
The BAG and the lower courts dismissed the claim. The AG was not liable for the alleged vaccine damage, because the AG has not violated any obligations vis-à-vis the EM. There was no medical treatment contract between the EM and the AG under which the AG would have been obliged to inform EM prior to vaccination nor was the AG obligated under the employment contract to inform EM about possible risks of the vaccination. Therefore, the AG was not held liable even if the company doctor had not met her obligation to inform EM.
No “works practice” and no right of co-determination of the works council according to Sec. 87 para. 1 no. 10 of the Works Council Constitution Act (Betriebsverfassungsgesetz = BetrVG) when the employer determines the (variable) amount of a contractual annual special payment (Christmas bonus) at his reasonable discretion, German Federal Labour Court (Bundesarbeitsgericht = BAG), 23.08.2017, 10 AZR 97/17, 10 AZR 136/17 and 10 AZR 376/17
The employer ("AG") - who was not obligated under a collective agreement - and its employees ("EM") had, among other provisions, agreed in their employment contracts that a Christmas bonus of “currently up to a full monthly salary” will be paid in addition to the base salary as a voluntary benefit while the respective concrete amount of the Christmas bonus will be announced annually by the AG. If the employment relationship started before 1 April of each year, an advance of up to half a month's salary should be paid on the bonus in June this year. These agreements were made by the AG with all its EM since the company was founded in 1984, even after the first constitution of a works council in 1989.
EM's pay slips for May 2014 included an "Advance pay Y[early]-bonus" of half a gross salary that was paid out to EM. Apart from the pay slips, the AG did not give any information about the Christmas bonus. After forecasting a negative pre-tax profit for the "second half" of the Christmas bonus in August 2014 at an estimated cost of € 320,000 to € 350,000, the AG decided in September 2014 not to pay any further Christmas bonus to the workforce for 2014. In October 2014, the AG informed the EM in writing that "due to the macroeconomic situation ... [of the AG], the payment of the second part of the year-end bonus with the November 2014 salary could not take place".
The three plaintiffs demanded from the AG the second half of the Christmas bonus and brought forward the following arguments: 1. the contractual Christmas bonus scheme would be non-transparent and had to be interpreted so that at least a monthly salary would have to be paid as a Christmas bonus, 2. the AG would have expressed in the pay slip for May 2014 that a second payment would follow in 2014 in the same amount, 3. the claim existed also due to the long-term unconditional payment practice of the AG under the legal concept of a “works practice” (under German labour law, the concept of the “works practice” gives employees a basis to assert a claim not explicitly agreed upon with the employer due to a similar and repeated behaviour of the employer which gives rise to trust in the employee that the employer will continue his practice; the “classical” example is the unconditional payment of a Christmas bonus that was not agreed on in the employment contract for at least three years in a row) and 4. that the AG had violated the works council’s right of co-determination under Sec. 87 para. 1 no. 10 of the Works Council Constitution Act (Betriebsverfassungsgesetz = BetrVG).
The BAG dismissed all three actions on the following grounds:
1. The contractual Christmas bonus scheme was not non-transparent, in spite of the employment contract provisions being general terms and conditions according to Secc. 305 ff. of the German Civil Code (Buergerliches Gesetzbuch = BGB). Since the employment contracts mentioned only a Christmas bonus of “currently up to a full monthly salary” it was, according to the BAG, clear that it is an open issue whether the bonus will reach this level in the future or be higher or lower. Thus, the AG could set the amount of Christmas bonus unilaterally at his discretion (Sec. 315 BGB). It would generally be permitted that the employment contract granted the AG the unilateral right to determine both the advance and the final amount of the Christmas bonus according to Sec. 315 BGB (i. e. at his reasonable discretion). The amount and nature of a special payment need not be concretely denominated in the employment contract. Whether the unilateral determination by the employer was reasonable/equitable was subject to full judicial review.
2. By calculating and paying the advance payment in May 2014, the AG had only put the regulation of the employment contract into practice and therefore did not express that a second payment would follow in the same amount. Even if the AG exercised his contractual right (!) in a similar and repeated way over a longer period of time, this would not lead to any concretisation with the consequence that any different exercise of the contractual right would no longer be reasonable/equitable. The pay slips for May 2014 with the words "Advance pay Y[early]-bonus" do not justify the assumption that the AG declared vis-à-vis the EM that he would exercise his determination right with respect to the second half of the Christmas bonus in the same way, especially because pay slips show only the current amount of the remuneration and documented the wage actually billed, but did not give rise to an entitlement for the EM.
3. There is no claim under the legal concept of a “works practice” for the AG had made the decision on the payment and the amount of the Christmas bonus on the basis of the employment contract. There were no indications that EM could justifiably understand the AG’s behaviour in such a way that the payment made for the month of May would be followed by another payment at the same amount at the end of the year, irrespective of the contractual agreement or due to a different legal obligation as a “works practice”.
4. The AG did not violate the co-determination right of the works council according to Sec. 87 para. 1 no. 10 BetrVG. The remuneration principles of the AG who was not obligated under a collective agreement, which also included the payment of the Christmas bonus, were introduced without violating the statutory co-determination provisions, because at the time of their introduction, no works council had existed. It was not necessary for the works council, which had been elected thereafter, to agree to these unchanged remuneration principles. An obligation for AG to respect the works council’s co-determination right under Sec. 87 para. 1 no. 10 BetrVG would only have existed if the existing remuneration system had been changed which was not the case for the AG only applied the existing remuneration principles exercising his reasonable discretion but did not modify them.
No right of co-determination of the works council with self-obligation of the employer to handle mobile work equipment, BAG, 22.08.2017, 1 ABR 52/14
The employer ("AG") had issued a "self-obligation how to handle mobile devices for employees" which informed the employees that the AG does not expect mobile work equipment to be used for business purposes outside the working hours and that turning off mobile devices in conferences and team meetings is – for him ("for us") – a matter of respect for others as well as a matter of effectiveness and performance orientation of a meeting. The works council believes that the AG may not communicate this to the employees without his having exercised his co-determination right because the expectations expressed in the commitment to the workforce concerned co-determination matters of the operational order and working time organization. The works council has requested a court order asserting its co-determination rights.
The BAG rejected the applications of the works council. The AG’s “self-obligation” does not aim to influence the employees’ behaviour, but expresses only that with handing out mobile devices does not imply the AG’s tacit expectation that the employees shall use the devices outside of the working hours in the leisure time for business purposes. By publishing the “self-obligation”, the AG concretized his right of instruction vis-à-vis the employees with respect to the work the employees have to perform under their respective employment contracts and not with respect to their general conduct while at work or vis-à-vis the other employees. There would be no right of co-determination according to Sec. 87 para. 1 no. 1 of the Works Council Constitution Act (Betriebsverfassungsgesetz = BetrVG), according to which the works council has to be consulted in matters of general rules for the conduct on the operation’s premises and the behaviour of employees at the workplace. This would even be more true with regard to the use of mobile work equipment during official meetings. A right to co-determination under Sec. 87 para. 1 no. 2 or no. 3 of the BetrVG does not exist, too, because the AG's “self-obligation” does not concern regulations on working hours, including breaks, or those for their temporary reduction or extension.
Employment contract reference clause on collective agreement as so-called “Gleichstellungsabrede” (i. e. contractual provision that employees not directly bound by a collective agreement shall – according to the employment contract – be treated according to the collective agreement), BAG, 05.07.2017, 4 AZR 867/16
The plaintiff employee ("EM") was employed by the employer ("AG") as a seller/cashier. The employment contract provided, among other provisions, that "the provisions of the collective agreements applicable to the place of work apply to employees in the retail trade - insofar as they are binding for [the AG] - as well as any company agreements / regulations in their respectively valid version". The legal predecessor of the AG had left the employers’ association „Rheinischer Einzelhandels- und Dienstleistungsverband“ by 31.12.2011. On 01.01.2013, the employment relationship of the AN was transferred by way of a transfer of business to the AG, who is a special member of an employers' association and not bound by a collective agreement. While the legal predecessor of the AG passed on a collective wage increase to the AN after having left the employers’ association, the AG did not pass on any wage increase to the AN since the transfer of the business. The AN demands from the AG the difference to the collectively agreed wage increase since the transfer of business.
The BAG dismissed the action because the parties had agreed on an explicit “Gleichstellungsabrede” in their employment contract, i. e. on a provision that AN, even if he is not directly bound by a collective agreement shall – according to the employment contract – be treated according to the collective agreement - but only “insofar as they are binding for the AG”. Interpreting the employment contract, the BAG comes to the conclusion that the relevant collective agreements for employees in the retail sector should only be applied in the version in force at the time, if the AG, for his part, is directly bound by these collective agreements according to the German Statute on Collective Agreements (Tarifvertragsgesetz = TVG). The contractual provision represented a so-called “conditional time-dynamic reference clause”. A “Gleichstellungsabrede” in the sense of a conditional, dynamic reference to collective agreements presupposes that the direct obligation of the AG under the collective bargaining agreement was made a resolutive condition in the employment contract in a manner recognizable to the AN. According to the BAG, this had been accomplished by the reservation "insofar as they are binding for [the AG]". The resolutive condition agreed with regard to the dynamics of the reference clause had occurred, since the binding force of the collective agreements had ended for AG’s legal predecessor on 31.12.2011. Therefore, the AG’s legal predecessor and the AG were only obligated under the collective agreements in force at the time when the AG’s legal predecessor left the employers’ association but not under the collective agreements agreed after that date.
Termination without notice for disloyal conduct, German Federal Labour Court (Bundesarbeitsgericht = BAG), 01.06.2017, 6 AZR 720/15
The plaintiff was the managing director of the defendant association. After differences with the association's chairman, the plaintiff called on the members of the association to demand the convocation of an extraordinary general meeting with the aim of the dismissal of the chairman. The association's managing committee then decided to terminate the managing director's employment contract without notice. The managing director filed a lawsuit against this termination without notice.
The German Federal Labor Court assesses the plaintiff's disloyal conduct as an important reason justifying the termination of the employment contract without notice. If the managing director of an association intriguingly pursues the dismissal of the association's chairman, then this is a disloyal behavior which destroys the trust base required for further cooperation and which seriously disturbs the peaceful atmosphere necessary for an unobstructed work of the association. The only question was whether the termination without notice was served within two weeks after gaining knowledge of the relevant facts in accordance with Sec. 626 paragraph 2 of the German Civil Code (Buergerliches Gesetzbuch = BGB).
The works council has no general right for the provision of an LED screen instead of a notice board, Higher Labour Court of Hesse (Frankfurt/Main), 06.03.2017, 16 TaBV 176/17
The works council wants the employer to provide two LED screens to inform the workforce about the works council's work (instead of informing the workforce by means of paper bulletins on notice boards). The employer maintains an LED screen to provide general information as well as welcome texts for visitors. The works council is of the opinion that only a few employees noticed the notice boards, and that LED screens would offer the advantages that the bulletins could be graphically designed and updated more quickly.
The LAG Hessen sees no right of the works council to be provided with two LED screens. Though the works council may assess whether it needs a piece of equipment to carry out its duties (which the employer has to provide), the works council may not take the decision solely on the basis of his subjective needs. The works council has to take account of the circumstances in the company and of its duties, and it has to weigh the interests of the workforce and the legitimate interests of the employer, in particular to limit the employer's obligation to bear the costs of the equipment. Although the LED screens served to carry out the statutory tasks of the works council (informing employees), the works council's considerations exceeded its scope of discretion since, in the end, only the printing and the affixing to the notice board would have been saved by the LED screens. Even if the employer maintains an LED screen, the works council had no right to such a screen, because the employer's LED screen would serve a different information purpose, namely the welcoming of visitors.
Reduction of work shift duration in respect of the rest period due to works council activities, German Federal Labour Court (Bundesarbeitsgericht = BAG), 18.01.2017, 7 AZR 224/15
A member of the works council who has to attend a works council meeting during the day between two night shifts (i. e. not within his normal working hours) is entitled to terminate the work in the previous night shift before the end of the shift, if only that this ensures an uninterrupted recovery time of eleven hours per day during which he/she must perform neither work nor works council activities.
The plaintiff is a member of the works council and works in a three-shift operation. In the night from July 16 to July 17 2013 he was assigned to the night shift from 22:00 p.m. to 6:00 a.m. with a break from 2:30 a.m. to 3:00 a.m. On 17 July 2013, the applicant participated in a works council meeting from 1 p.m. to 3.30 p.m. With regard for the works council meeting, he finished his work at 2:30 a.m. in the previous night shift. He was credited on his working time account for the night shift only the working time until 3:00 a.m. and from 5:00 a.m. to 6:00 a.m. In the present action, the plaintiff has requested, inter alia, the credit of the other two hours from 3 a.m. to 5 a.m. The complaint was successful.
Pursuant to Section 37 paragraph 2 of the Works Council Constitution Act (Betriebsverfassungsgesetz = BetrVG), members of the works council are to be exempted from their professional activities without reducing their remuneration, even if a work council's activity during the off-time makes the work performance impossible or unacceptable. In the present case, on 17 July 2013, the plaintiff did not have to work from 3 a.m. on account of the works council meeting which commenced at 1 p.m., because he would not have had an appropriate uninterrupted recovery time if he had continued his work (due to the works council activity, i. e. because on 17 July 2013 at 1 p.m. the plaintiff did not have to perform his contractually owed work, ten instead of eleven hours appear to have been sufficient in this case). The German Federal Labour Court has not decided whether the time used for works council activity is "working time" according to Section 2 paragraph 1 of the German Working Time Act (Arbeitszeitgesetz = ArbZG) and Section 5 paragraph 1 of the German Working Time Act. In any event, the provision of Section 5 paragraph 1 of the German Working Time Act (which provides for an uninterrupted recovery time of eleven hours) is to be taken into account when assessing whether the member of the works council has to work the complete night shift or whether he/she may finish earlier because of the upcoming works council activities.
No hearing of the works council before the employment of a contractor's employees on the basis of a contract for work and services, German Federal Labour Court (Bundesarbeitsgericht = BAG), 08.11.2016, 1 ABR 57/14
The employer operates two psychiatric clinics, for which the applicant works council is elected. In both hospitals, employees were employed in the Reception/Gate/Information and Telephone Services Division (Gate Department). In March 2013, the employer decided to transfer the entire Gate Department of one of the hospitals to a group-owned service company (ASG) through contractual agreements. The service contract between the employer and ASG describes in detail the activities to be carried out by ASG in the area of the Gate Department, where ASG employs four employees. The ASG team leader or her deputy are regularly present from 7:00 a.m. to 4:00 p.m. from Monday to Friday. They coordinate the services to be provided by ASG. Further, ASG is responsible for arranging the employees' service and holiday plans. ASG also instructs its employees and tells them what kind of work to do and how to perform the work. The works council has argued that the Gate Department is still part of the hospital operation. All of the clinics' stations depended on a close cooperation with the Gate Department. In the cases of postal services and patient reception, the tasks of the ASG employees and those of the employer would even overlap and the hospital staff would give instructions to the ASG employees which is why the ASG employees would be integrated into the employer's working organisation which, in turn, constituted a right of the works council to be heard according to Section 99 paragraph 1 of the Works Council Constitution Act (Betriebsverfassungsgesetz = BetrVG) before the ASG employees start to work at the hospital's reception/gate.
The German Federal Labour Court rejects the work's council's notion. German labour law does not already assume an integration into an employer's working organisation when the contractor's employees work in the customer's enterprise and their work is described in detail according to type, extent, quality, time and place and included into the customer's operational process. Neither the close co-operation of the contractor's employees with the customer's employees nor the (general) instruction and coordination of the contractor's employees by the customer's employees or the fact that the activity in question has so far been (and still is at certain times) carried out by the customer's employees are sufficient for an "integration" according to Section 99 paragraph 1 of the Works Council Constitution Act. Even if the work of the contractor's employees in the customer's company is interlocked with the customer's operational processes, the contractor's employees work which is based on a contract for work and services does in itself not lead to an "integration" according Section 99 paragraph 1 of the Works Council Constitution Act, so that the works council has no right to be heard.
No general obligation to participate in a staff interview during incapacity for work, German Federal Labour Court (Bundesarbeitsgericht = BAG), 02.11.2016, 10 AZR 596/15
The plaintiff was employed by the defendant as a medical documentation assistant. From the end of November 2013 until the middle of February 2014, the plaintiff was incapacitated. In January 2014, the defendant invited him to a staff interview and, after the plaintiff's refusal referring to his incapacity for work, in February 2014 again in order "to clarify further employment opportunities". The applicant also did not accept the invitation to the second staff interview with reference to his incapacity for work. The defendant served a written warning letter dated 18 February 2014 to the plaintiff. Unjustly, as the German Federal Labour Court found, and clarified the principle and the exception as follows:
Principle: The employee's obligation to work includes the obligation to participate in a staff interview which is ordered by the employer during working hours at the company premises, the subject matter of which is the content, place and time of the work to be performed, unless these working conditions are otherwise specified (§ 106 sentence 1 of the Trade, Commerce and Industry Regulation Act (Gewerbeordnung = GewO)). However, since an incapacitated employee does not have to work, he/she is also not obliged to appear in the company or to fulfill any other direct obligations directly connected with his/her main working obligation.
Exception: If the employer (a) shows a legitimate interest in a staff interview during the incapacity for work (e.g., because the employee has information on important operational procedures or operations necessary for continuing the business or if the employer wants to inform the employee about forthcoming changes to the workflow which have a significant impact on the employee's place of work, or if he wishes to discuss with him or her his or her willingness to accept a new work assignment before assigning the job to a colleague), (b) the staff interview cannot be postponed to a date after the incapacity for work is over and (c) the participation in the staff interview can reasonably be expected by the employee, then the employee is obliged to participate in a "brief" staff interview. However, the staff interview during incapacity for work may take place at the company premises only in exceptional circumstances if this is indispensable due to business reasons and if the employee is capable to participate with respect to his state of health.
No legal protection for "sham applicants": European Court of Justice decides the question submitted by the German Federal Labour Court, if the European Directive, which has been transformed into German law by the German General Act on Equal Treatment, also protects "sham applicants" for an employment – ECJ, 28.07.2016, C-423/15 and German Federal Labour Court (Bundesarbeitsgericht = BAG), 18.06.2015, 8 AZR 848/13
According to Sec. 7 of the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz = AGG), "employees" may not be discriminated against on the reasons stated in Sec. 1 AGG, inter alia "age". Sec. 6 paragraph 1 sentence 2 AGG provides that applicants for an employment shall be regarded as "employees" in the aforementioned sense, too. In the facts of the case, the plaintiff, a fully qualified lawyer under German law who had finished his legal education and training in 2001 and who had been working as a self-employed attorney, had applied for participation in a traineeship in an insurance company. The insurance company demanded from the applicants a very good graduate degree not older than one year or upcoming and qualified professional experience acquired through education, internships or as a working student. In the field of law, labour law expertise or medical knowledge were required additionally. The insurance company refused the plaintiff. Therefore, the plaintiff, feeling discriminated against, demanded a compensation of 14.000 € from the company. The company's HR director subsequently invited the plaintiff for an interview. The plaintiff refused the invitation and proposed to talk about his future career in the company after the company had paid the compensation money.
The German Federal Labour Court held that, due to the wording of the application and his subsequent behaviour, the applicant had not applied with the goal of being employed by the company. The application letter was held to be opposed to an employment as a "trainee". Further, the applicant had refused the invitation to the interview. Therefore, the applicant would - under German law - not be an "employee" or an "applicant" according to Sec. 6 paragraph 1 sentence 2 AGG. European law, however, does not cite an "applicant" in the relevant directives but protected the "access to employment or to dependent and self-employed occupation". It would not be clear if European law required as well that an applicant really looks for access to employment and that he really wishes to be employed by the employer. It is within the range of the European Court of Justice's jurisdiction alone to judge whether a merely "formal" application is sufficient for the protection under European law and therefore, the German Federal Labour Court has presented the question to the European Court of Justice.
The European Court of Justice held that if a person does not wish to be employed but only wishes to acquire the formal status of an applicant instead, with the sole objective of receiving a compensation payment, this person does not look for access to employment, to self-employment or to occupation in the sense of Article 3 paragraph 1 or Article 1 of the Directive 2000/78 or 2006/54 respectively, and that her or his behaviour represents an abuse of legal rights. For practical use, two aspects should be focused: First, there have to be facts which support the assumption of a "sham application", and second, the ECJ did not clarify the point whether "sham applicants" as such are not covered by the Directive or if they are covered in principle but "merely" not legally protected by the Directive due to an abuse of legal rights.