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Labour law - the legal relationship between employer and employee

There are around 41 million employees working in Germany. Some compare their job to a second family, but as an employment lawyer, I know that disputes can arise even in the best families. Questions about employment contracts, maternity protection and protection against dismissal are common topics in legal issues relating to employment relationships. The fact that the employment courts processed 426,000 employment law claims before the Corona pandemic is therefore not surprising. The employment relationship plays a crucial role in the quality of life, as it secures a livelihood and takes up a large part of one's life. For this reason, it is of great importance that employees can work in a legally secure working environment.

Labour law – what it includes

Labor law includes all legal provisions, regulations and rules that affect employment. Individual labor law sets out the essential provisions for employees that regulate the relationship between employee and employer.

If you would like to find out what rights and obligations apply to you in your employment relationship, I would like to give you an overview so that you are well prepared.

Do you have questions about your rights and obligations in your employment relationship? I will give you an overview so that you are well prepared.

The employment contract – the starting point and framework of the employment relationship

The employment contract between the employee and the employer is the basis of every employment relationship. The employment contract is defined by the work performed by the employee in return for payment of remuneration by the employer. The rights and obligations of the employee are generally derived from the employment contract. Due to the freedom of contract, the contracting parties can freely negotiate the employment relationship. The employment contract often contains additional clauses on topics such as working hours, probationary periods, fixed-term contracts, vacation, confidentiality or prohibitions on secondary employment. Elements that are not regulated by contract are regulated by law, primarily the Civil Code (BGB), determined.

However, the law also provides for mandatory provisions that cannot be overridden by an employment contract. This means that if contractual clauses are to the detriment of the employee, they are invalid. These include, in particular, provisions on the following areas:

Minimum wage according to Minimum wage law (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 after Continued Remuneration Act (EFZG)
Notice periods in Civil Code (German Civil Code), Vocational Training Act (BBiG), Insolvency Act (Insolvency Code), Federal Parental Allowance and Parental Leave Act (BEEG)
Occupational safety measures according to Occupational Safety and Health Act (Occupational Safety and Health Act)

Regulations (particularly those relating to occupational health and safety) and EU directives also apply. Labor law does not apply to public sector employees, such as civil servants, soldiers and professional judges.

Would you like to have your employment contract reviewed? Does it contain invalid clauses? Are you unsure about your rights and obligations under the employment contract?

Termination – The lawful termination of an employment relationship

In addition to the expiration of a fixed-term employment contract or a termination agreement, termination is an option for ending the employment relationship. A distinction is made between ordinary and extraordinary terminations. In addition, it must be checked whether general protection against dismissal applies.

In the case of a regular termination, the notice periods must be observed: This means that the employment relationship continues after termination until the expiry of the notice period. An employee can terminate at any time without giving reasons. The regular notice period is 4 weeks on the 15th of a month or the last day of the month. It is important to note that this is actually 4 weeks, i.e. 28 days. The employer, on the other hand, is bound to longer notice periods, which depend on the length of the employment relationship. For example, if you have been with the company for up to 2 years, there is a notice period of 1 month, for 10 years it is 4 months, and after 20 years the notice period is a maximum of 7 months.

In addition, the law recognizes extraordinary termination. This terminates the employment relationship without notice. An important reason is required for this, and it is only permissible if the continuation of the employment relationship is unreasonable. This is the case, for example, in cases of sexual harassment, violence, bullying or repeated late payment of wages by the employer.

Do you have questions about deadlines? Are you suffering from unacceptable conditions at work?

Would you like to have your employment contract reviewed? Are there any invalid clauses? Are you unsure about your rights and obligations under the employment contract?

The specific requirements of protection against dismissal

In addition to the notice period, as an employer I am also obliged to comply with the protection against dismissal. In principle, dismissals for immoral, discriminatory or disciplinary reasons are prohibited. If necessary, I must inform the existing works council about the dismissal before giving notice of dismissal and may have to obtain its consent or consult it.

In addition, the Dismissal Protection Act (KSchG) stipulates special requirements for an effective dismissal. I must comply with these if the employee has been employed for more than 6 months and the company has more than 10 employees (for a workforce that was employed before 2004, the limit is 5 employees). When determining the number of employees, the following key applies to part-time employees and trainees:

Employees who work less than 30 hours count as 0.75 employees.
Employees working 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, I have to give reasons for the ordinary dismissal. A distinction is made here between behavioral, operational or personal reasons for dismissal:

A operational This is the case if operational requirements prevent continued employment - for example, if staff have to be reduced due to a poor economic situation. In this case, a social selection must be made among comparable employees.
A personal The reason for this is when the employee is no longer able to carry out the job's activities. This can be due to an injury or chronic illness, for example.
A behavioral Reasons exist if the employee violates contractual obligations through misconduct. The examples of extraordinary reasons for termination apply accordingly.

In addition, employees who find themselves in special situations enjoy special protection against dismissal: for example, pregnant women, employees on parental leave, disabled people, works council members or trainees. Ordinary dismissal of the employee is not possible in this situation.

The employee can defend himself against the dismissal by filing a wrongful termination suit. This must be filed within 3 weeks before the relevant labor court, otherwise the reason for the dismissal is automatically considered justified.

Your dismissal is unfair? Are you unsure about the reasons for the dismissal? Since you only have 3 weeks to file a complaint, don't hesitate!

Maternity Protection – My Rights During Pregnancy

Another important aspect of employee protection is maternity protection. Based on the Maternity Protection Act (MuSchG), supplemented by the Maternity Protection Ordinance (MuSchArbV), it serves to protect health. Maternity protection applies to employees from 6 weeks before the expected date of birth to 8 weeks after the birth. The exact protection period (also called maternity protection period) can easily be determined using a maternity protection calculator. In this context, the employee should inform the employer of the date of birth. 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. The employer must set up the workplace to suit pregnancy, i.e. provide opportunities for rest and avoid dangerous activities. After the birth, the woman is not allowed to work due to an employment ban. Due to the loss of earnings, the mother receives maternity benefit during this time.

Maternity protection protects your health! Is your employer ignoring important legal protection regulations? I am here to help you enforce your rights during pregnancy.

Procedure – My approach to effective protection of workers’ rights

Any claim relating to the employment relationship will be heard in the labour courts. This is governed by the Labour Court Act (ArbGG). In the first instance, a labor court decides, in the appeal a regional labor court and as an appeal instance the Federal Labor Court (BAG) in Erfurt. The panel - i.e. the decision-making body - is headed by a full-time judge and one lay judge each for the employee and employer side.

Would you like to file a lawsuit in the employment court? With me at your side, you can take legal action with legal certainty.

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We would be happy to advise you comprehensively and personally on your concerns.

My work – based on the principles of collective labour law

As a labor law attorney, I am constantly training myself in this changing area of law. In order to represent my clients in a professional manner, it is essential to understand the core of labor law. It is important to remember that the basis of labor law - the employment contract - can also be concluded tacitly. Even if the employer and employee have not expressly agreed to work for remuneration, this can be replaced by simply taking action. The so-called real offer lies in the conclusive behavior of having started the work and in the remuneration received for it. So anyone who thinks that employment contracts have to be in writing is wrong. As always, the circumstances of the individual case are decisive. This is what makes German labor law so complicated.

My work for you

As a labor law attorney, I take care of about all matters of employment law. If you are my client, I will deal with your case immediately. My range of services includes the following activities in particular:

Check employment contracts for pitfalls and ineffective provisions
Enforce dismissal protection law – for example in the case of maternity protection
Contesting the validity of fixed-term employment contracts
Elimination of deficiencies in occupational safety
Claim for loss of wages
Enforce or contest termination of employment
Prepare and draw up a termination agreement
Make severance pay advantageous, legally secure and tax-efficient
Check employment references and challenge unjustified evaluations

Under what conditions can an employment relationship be limited in time?

As a rule, employment relationships are permanent. In exceptional cases, however, the employment contract may contain a fixed term. There must be a reason for this in accordance with the Part-Time and Fixed-Term Employment Act (TzBfG), for example in the case of a replacement due to illness or accident.

How can an employment relationship be terminated?

An employment relationship can be terminated by a termination agreement, a challenge, reaching the age limit or the death of the employee. In addition, extraordinary or ordinary termination is also possible. A fixed-term employment relationship is not subject to ordinary termination.

What are the reasons for regular termination?

The Dismissal Protection Act (KSchuG) provides three reasons for ordinary dismissal: personal reasons, behavioral reasons or operational reasons. However, for dismissal protection to apply, the company must have more than 10 employees.

How can you defend yourself against dismissal?

According to the Dismissal Protection Act (KSchuG), a dismissal can be contested by filing a dismissal protection suit. This suit must be filed with the relevant labor court within 3 weeks. If this deadline is missed, the dismissal is automatically considered effective.

How is termination without notice defined?

A termination without notice ends the employment relationship between employee and employer with immediate effect. There must be a sufficient reason for this. In addition, it may be unreasonable for the employer to wait for the regular notice period. Such a reason could be, for example, theft or physical injury to employees.

Can works council members be dismissed?

According to the Works Constitution Act (BetrVG), a works council can only be terminated during its term of office in exceptional cases, for example in the event of a plant closure. However, extraordinary termination is still possible.

Will I continue to receive my salary during maternity leave?

If you work during maternity leave before giving birth, you will continue to receive your usual salary, which may not be reduced due to loss of performance due to pregnancy. Since you are not allowed to work after giving birth, you will receive maternity allowance instead of wages.

How long is the duration of maternity protection?

Maternity protection extends from 6 weeks before the expected date of birth to 8 weeks after the actual date of birth. This period also applies to stillbirths. In the case of premature births, the premature birth is added to the 8 weeks after the due date.

What holiday entitlement am I entitled to during maternity leave?

Even if you work less due to the employment ban or during parental leave, your holiday entitlement remains. This does not expire on March 31 of the following year, but can be taken after maternity leave or parental leave.

Can the employer give notice of termination verbally?

A notice of termination must be made in writing. The employer is obliged to write and sign the notice of termination in writing. The German Civil Code (BGB) expressly excludes electronic form, so an employment contract cannot be effectively terminated by email, fax or SMS.