In a remarkable decision, the German labor court in Heilbronn (case no. 8 Ca 191/23) dealt with the issue of age discrimination in job advertisements. The focus was on the use of the term “digital native” and its implications for older applicants.
Category: Labour law
In its ruling on January 27, 2023, the Baden-Württemberg State Labour Court had to assess a complex issue relating to the use of personal data in an employment law context. The case concerned the dismissal of an employee, with the use of data from his work smartphone playing a central role.
In its ruling of September 28, 2023 (case reference 5 Sa 15/23), the Mecklenburg-Vorpommern Regional Labour Court made important decisions regarding the reclaiming of salary due to non-performance of work in the home office and the associated burden of presentation and proof.
A decision by the Düsseldorf Regional Labor Court (LAG, 3 Sa 377/22) sheds an interesting light on the topic of whistle-blowing and the protection of trade secrets in the context of employment relationships. The case provides an opportunity to examine both the legal framework and the practical consequences for employers and employees
The Federal Labour Court (BAG) in Germany recently addressed a case focusing on the use of content from WhatsApp chat groups in employment law proceedings. The case, identified as 2 AZR 19/23, involved the permissibility of using chat transcripts from a WhatsApp group as evidence in a termination case.
According to the Federal Fiscal Court (BFH, VI R 20/20), remuneration paid by an employer to its employees for advertising by the employer on the license plate holder of the employee’s private car is remuneration for work if the “advertising rental agreement” concluded has no independent economic substance.
Before issuing a notice of termination, it is often necessary to first issue a warning. In many cases, this takes precedence over termination as the most lenient means. The State Labor Court of Mecklenburg-Western Pomerania has recently pointed this out once again (5 Sa 245/21).
If the employee is unable to work for more than six weeks, the certificate of incapacity for work (AU) is not sufficient to automatically receive continued payment of remuneration. There must be no continuation of the illness, which the employee must prove. This was decided by the Hesse Regional Labor Court (LAG, 10 Sa 898/21).
An often underestimated problem is the so-called pseudo self-employment: It can happen that someone is self-employed “on paper” and also behaves like this in everyday life. However, case law and the social security funds in Germany can come to the conclusion that an employment relationship is to be assumed despite self-employment. Objective criteria are used for this – and if the apparently self-employed person is then actually classified as an employee, this has unpleasant consequences: Social security contributions must be paid in arrears, which in Germany can quickly run into six figures! In addition, there is the threat of criminal liability for the involuntary employer and suddenly a monthly remuneration obligation if one does not give proper notice.
When does pseudo self-employment exist? The Federal Social Court (B 12 R 7/15 R) had the opportunity to comment on the criteria for the assumption of pseudo self-employment. Especially in the area of IT law and the widespread use of freelancers here, this is a constant minefield. At the time, the court had ruled that it is a weighty indication of self-employment if the agreed fee is significantly higher than the salary of a comparably employed employee subject to social security contributions and thus allows for self-provision. On this occasion, the court also once again discussed the criteria to be used in the examination of a pseudo-self-employment.
According to the German Federal Labor Court (2 AZR 17/23), an employee who makes strongly insulting, racist, sexist and violent comments about superiors and other colleagues in a private chat group consisting of seven members can only invoke a justified expectation of confidentiality against extraordinary termination of his employment relationship in exceptional cases.