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Germany

2018-02-10

Employment in Germany

Unfair Dismissal
Claims for wrongful dismissal are nothing new: an employee who thinks that he has been wrongfully dismissed may bring an action for damages at common law and such a claim is justiciable in the ordinary German courts. The German laws, however, sanction a special form of claim, for 'unfair dismissal'.
With certain exceptions, this right is available to anyone who has been dismissed. The excepted classes are: (i) normally people above the age of 65: (ii) people who have not been continuously employed for 26 weeks; (iii) people who are under a fixed term contract of two years or more who have in writing, during that period, waived the right to treat non-renewal of the contract after its expiry as a 'dismissal'.
Dismissal means: (a) termination of the contract by the employer, with or without notice: (b) failure to renew a fixed term contract after its expiry: (c) conduct of the employer (such as calling a lawyer 'a bitch') which goes to the root of the relationship and entitles the employee to repudiate the contract without notice: (d) refusal to permit a woman to return to work after maternity absence. The relationship of the parties being solely contractual, no claim for wrongful dismissal will lie, and the termination of the contract cannot be wrongful, if due notice has been given, for whatever reason: nor will any action lie upon non-renewal at the expiry of a fixed term contract. 'Unfairness', for the purposes of the Act, means dismissal of the employee for an inadmissible reason. It lies upon the employer to disclose his reason or reasons for the dismissal, and it must be a reason of a certain kind, namely a reason related to: (a) the capability of the employee - 'his skill, aptitude, health or any other physical or mental quality'; (b) the qualifications of the employee -any degree diploma or professional qualification; (c) the employee's conduct; (d) redundancy; (e) the fact that his work, if he were to continue in it, would contravene an enactment - eg the case of a driver disqualified; (f) 'any other substantial reason'. In this regard it is important to note that there is a practice drawn up under statutory authority by the lawyer for employment law which may be used by employers as a guide to their conduct; and which, though an employer is under no legal obligation to observe it, may be admitted in evidence to act as a criterion of judgment of the employer's behaviour.

Reasons for dimissal

So much for the general nature of unfair dismissal. The act further specifies a number of reasons for dismissal which are, by their nature, to be treated as unfair: these include: (i) the fact that the employee joins or proposes to join an independent trade union or, outside working hours, takes part in union activities, or that he refuses to join a union which is not independent - which is in some way controlled by the employer: (ii) the pregnancy of a female employee unless (inter alia) she is rendered incapable of her work on account of it. On the other hand there are reasons which are fair and automatically admissible; eg that the employee has refused, or proposes to refuse, to join an independent union which has a membership agreement with the employer in respect of the category of employee to which the dismissed person belongs.
Where a dismissal takes place during a strike or a lock-out the industrial tribunal has no jurisdiction to adjudicate upon dismissal unless one or more employees of the same class as the person dismissed have not been dismissed, or unless one or more such people have been re-engaged.
Where unfair dismissal is established the industrial tribunal may award compensation to the employee upon a basis prescribed by the Act, or it may make an order for reinstatement or re-engagement. It should be added that provision is made for conciliation by authorized conciliation officers to seek to settle a complaint of unfair dismissal without resort to a tribunal.