Monthly Dose Employment Law: 02/2025

On 21 August 2024, the Federal Labour Court (Bundesarbeitsgericht; BAG) ruled (5 AZR 266/23) that the statutory break does not have to be remunerated even if there is no regular working time as a result of it. The determination of the breaks is subject to the employer's reasonable discretion (and also the co-determination of the works council).

Facts

• The plaintiff worked as a production employee in a three-shift operation for the defendant employer until his retirement in May 2022. His collectively agreed weekly working hours were 35 hours, with a gross monthly salary of EUR 2,819.
• The employment relationship was subject to the Joint Framework Agreement for Employees and Trainees in the Thin Sheet Packaging Industry (GMTV), which provides for a regulation on the remuneration of break times if regular working hours are cancelled as a result (Section 5 GMTV).
• In addition, there was a company agreement in the defendant's company which regulated shift work in the company and defined the distribution of working days and hours.
• The plaintiff demanded compensation for the breaks he took between July and December 2021 because he suffered a financial disadvantage as a result of the extended attendance time.
• He argued that he regularly spent his breaks voluntarily in the canteen in order to monitor possible faults in the machine he was looking after on a screen. The screen meant that he was in a kind of ‘permanent state of alert’. He was not able to truly relax.
• The defendant refused to make a payment and pointed out that, in particular, no regular working hours had been lost due to the breaks.

Reasons for the decision

• The Federal Labour Court dismissed the claim.
• No claim for remuneration under Section 5 GMTV: Remuneration for break times only occurs if working hours are actually lost due to the statutory break. This was not the case here.
• No flat-rate obligation to remunerate for breaks: There is no collective bargaining or statutory entitlement to general remuneration for breaks within the meaning of Section 4 of the German Working Hours Act (ArbZG).
• No basis in EU law: The plaintiff cannot invoke EU law because Directive 2003/88/EC merely defines working hours but does not address remuneration. The manner of remuneration is left to national law.
• Break regulations at one's own discretion: The employer may determine the location of the breaks and must only comply with the requirements of the employer's right to issue instructions (Section 106 sentence 1 of the German Industrial Code (GewO)) and the co-determination rights of the works council.
• The requirement of ‘being fixed in advance’ as provided for in Section 4 sentence 1 of the Working Time Act is fulfilled if the employee knows at the beginning of the break that he is now having a break for the purpose of recuperation and can freely dispose of the use of this period.
• No interference with rest period: The fact that fault reports were visible in the canteen is not sufficient to qualify the break as ‘working time’.
  

Consequences for the practice

Employees cannot demand that breaks be remunerated as working time simply because they voluntarily pay attention to a possible interruption during the break. Employers meet the legal requirements if the employee is informed of the start and duration of the break at the latest by the start of the break.

On 23 October 2024, the Federal Labour Court ruled (5 AZR 82/24) that a slight exceedance of the highest collectively agreed remuneration is sufficient for the status of an employee not covered by a collective agreement and for their remuneration, provided that no collective agreement distance clause stipulates a certain minimum percentage distance.

Facts

• The plaintiff, a member of IG Metall, has been employed as a development engineer at the defendant since 2013.
• Since June 2022, he has been remunerated on the basis of an employment contract designated as ‘non-tariff’ and, on the basis of a regular weekly working time of 40 hours, receives a gross monthly salary of EUR 8,212.00.
• The highest collectively agreed remuneration is EUR 8,210.64 (extrapolated to a 40-hour week).
• In his action, the plaintiff sought higher remuneration for the period from June 2022 to February 2023, arguing that a percentage gap of 23.45% between his remuneration and the highest collectively agreed remuneration in pay groups 1 to 14, in line with the successive increase in the collectively agreed spread between these groups, should be maintained. Accordingly, he would be entitled to an additional EUR 1,924.03 per month.
• However, the defendant rejected the claim and referred to the collective bargaining regulations in North Rhine-Westphalia, which only require a minimum distance to be maintained (see Section 1 no. 3 of the Framework Agreement on Pay of 8 November 2018 of the metal and electrical industry in North Rhine-Westphalia (Manteltarifvertrag, MTV) and Section 1 no. 3 of the Framework Agreement on Pay of 18 December 2003 (Entgeltrahmenabkommen, ERA NRW)).

Reasons for the decision

• The Federal Labour Court dismissed the action.
• The collective bargaining provisions in Section 1 no. 3 MTV, Section 1 no. 3 ERA NRW merely require that the working conditions of the employee not covered by a collective agreement regularly exceed the highest remuneration under the collective agreement. A specific minimum percentage difference is not provided for in the collective agreement.
• In the opinion of the Federal Labour Court, a supplementary interpretation of the collective agreement, as requested by the claimant, is out of the question because there is no unplanned gap in the regulations and the collective bargaining autonomy (Art. 9 (3) of the German Constitution) guarantees a wide scope for the parties to collective agreements.
• The Federal Labour Court confirmed that the plaintiff already fulfilled the requirements of the collective agreement excess due to the already paid, minimally higher remuneration (EUR 8,212.00 compared to the highest collectively agreed remuneration of EUR 8,210.64).

Consequences for the practice

Without a collective agreement minimum distance clause, non-tariff employees are only entitled to remuneration that is above the highest collectively agreed remuneration group. Employers have a great deal of leeway when determining the distance and therefore do not have to exceed the highest remuneration group by a small amount.

The Higher Labour Court (Landesarbeitsgericht, LAG) Berlin-Brandenburg ruled, following the recent case law of the Federal Labour Court (Bundesarbeitsgericht, BAG) on this, on 5 July 2024 (12 Sa 1266/23) that the employer can shake the evidential value of a medical certificate of incapacity to work if concrete evidence gives rise to doubts about the actual incapacity to work. The employee must specifically explain which health restrictions prevented him from performing his work.

Facts

• The plaintiff had been employed by the defendant as a production manager since 15 November 2021.
• On 26 October 2022, he was given oral notice of termination. One day later, he reported that he was unable to work due to illness.
• By letter dated 28 October 2022, which was received by the plaintiff on the same day, the defendant declared the ordinary termination of the employment relationship as of 30 November 2022.
• The medical certificates previously obtained by the plaintiff covered exactly the period until the end of the notice period on 30 November 2022.
• During the sick leave, the plaintiff participated in a handball game as a player and referee, among other things.
• The defendant paid him for this period and later (on 18 October 2023) demanded repayment because it doubted the incapacity to work.

Reasons for the decision

• The Higher Labour Court of Berlin-Brandenburg allowed the claim.
• Shattering of the probative value: The Higher Labour Court of Berlin-Brandenburg considered the probative value of the medical certificates of incapacity for work dated 27 October 2022 and 9 November 2022 to have been shattered because:
  (1) the medical sick leave was issued exactly until the end of the notice period,
  (2) the plaintiff was physically active during his alleged incapacity to work and
  (3) the follow-up certificate was issued for a period of more than two weeks, contrary to the requirement of Section 5 (4) of the Incapacity to Work Guideline.
  
• Burden of proof on the employee: Following the undermining of the probative value, the claimant should have provided specific information on his illness and the resulting restrictions. Since he did not do this, the defendant's assertion that he was not ill was deemed to have been conceded.
• Repayment claim of the defendant: Since the continued payment of remuneration was made without legal basis, the plaintiff must reimburse the remuneration paid in accordance with Section 812, Subsection 1, Sentence 1, of the German Civil Code (Bürgerliches Gesetzbuch - BGB) and assign his claim for reimbursement against the health insurance fund to the defendant.

Consequences for the practice

Medical certificates of incapacity to work are not considered irrefutable evidence. Employers can undermine their probative value if there is strong circumstantial evidence to suggest that the employee is not actually ill. As already confirmed by the Federal Labour Court (BAG) (judgment of 13 December 2023, 5 AZR 137/23; see our discussion of the judgment in the 04/2024 edition of Monthly Dose Arbeitsrecht), such evidence includes the termination of the employment relationship on the same day as the expiry of the certificate of incapacity to work. In the event of the probative value being shaken, employees must provide full evidence of the incapacity to work cited by them and in practice will regularly (only) achieve this by releasing the treating physician from their duty of confidentiality and offering to call the physician as a witness.

On 29 July 2020, the Higher Labour Court of Lower Saxony ruled (4 Sa 531/23) that a grossly negligent breach of safety instructions can justify extraordinary termination. The court stated that the employee could only be employed elsewhere if this was reasonable for the employer.

Facts

• The plaintiff had been working as a crane operator for the defendant since 1990 and could not be given notice with notice in accordance with Section 17 no. 6.2. of the applicable collective agreement for the iron and steel industry (MTV).
• He had received several warnings in the past for violating safety instructions, including for dangerous crane manoeuvres.
• On 28 December 2022, during the night shift (while operating a crane), the plaintiff collided with a defective crane, which meant that electricians working there could only hold on with great effort to avoid falling.
• The defendant terminated the employment relationship with immediate effect by letter dated 12 January 2023 (after the facts of the case had been established).
• The plaintiff claimed that poor lighting and a lack of safety precautions on the part of the electricians contributed to the accident.
• The Braunschweig Labour Court ruled that the dismissal was disproportionate and upheld the claim, stating that the plaintiff could have continued working as a gatekeeper.

Reasons for the decision

• The Lower Saxony Regional Labour Court upheld the defendant's appeal against the first-instance decision and dismissed the claim.
• Grossly negligent breach of duty: The plaintiff moved the crane without making sure that the crane runway was clear. This posed a significant risk to colleagues and thus constituted good cause for termination within the meaning of Section 626 of the German Civil Code (BGB).
• Negative prognosis: Due to previous warnings about the plaintiff's behaviour, it could not be expected that he would work in a safety-compliant manner in the future.
• Unreasonableness of continued employment: Other workplaces, such as the gatekeeper's service, also require a high degree of diligence and sense of responsibility, which the plaintiff lacked in the opinion of the court. The plaintiff's misconduct had severely shaken confidence in his reliability.
• Ultima ratio principle fulfilled: Continued employment in another position was out of the question because the claimant's misconduct was not limited to his workplace.
• Notice served in due time: The extraordinary termination was effected within the two-week period pursuant to Sec. 626 (2) BGB.

Consequences for the practice

The decision illustrates that employers must issue clear instructions, consistently document violations, and address them through warnings or reprimands in cases of repeated safety breaches. Otherwise, termination may be invalid, even for grossly negligent violations in hazardous tasks. Alternative employment options only need to be considered if the misconduct is job-specific.

On 12 September 2024, the Cologne Higher Labour Court ruled (6 SLa 76/24) that the employer's obligation to carry out a preventive procedure in accordance with Section 167 (1) SGB IX when difficulties arise in the employment relationship with a severely disabled person is also required in the first six months of the employment relationship and is not limited to the period after the expiry of the waiting period under Section 1 (1) KSchG.

Facts

• The plaintiff employee worked for the defendant employer as an ‘employee in the building yard’ from 1 January 2023, whereby the plaintiff was hired in the knowledge of the severe disability with a degree of 90.
• The defendant terminated the employment relationship with the plaintiff on 22 June 2023 after hearing the staff council, the representative body for severely disabled persons and the equal opportunities officer in due time as of 31 July 2023. The reasons for this were unreasonable conflicts among the employees and a failure to pass the probationary period.
• The defendant did not carry out a preventive procedure in accordance with section 167 (1) SGB IX before giving notice of termination.
• The plaintiff filed an action for unfair dismissal in June 2023. The defendant did not offer any suitable employment.
• The Cologne Labour Court (ArbG) upheld the action for protection against dismissal with reference to suspected discrimination under Section 22 of the General Equal Treatment Act (AGG) due to the failure to carry out the prevention procedure in accordance with Section 167 (1) of the German Social Code, Book IX. In the first-instance decision, it deemed the case law of the Federal Labour Court (most recently in the judgment of 21 April 2016, 8 AZR 402/14), according to which the obligation to carry out the prevention procedure pursuant to Section 167 (1) SGB IX does not commence until after the expiry of six months, to be contrary to European law.

Reasons for the decision

• The Cologne Higher Labour Court dismissed the defendant's appeal against the first-instance decision.
• Preventive procedure under Sec. 167 SGB IX also during the first six months: The employer's obligation to carry out a preventive procedure in accordance with Section 167 (1) SGB IX already applies in the first six months of the employment relationship and not only for the period after the expiry of the waiting period under Section 1 (1) KSchG. Neither the wording nor a systematic comparison with § 173 SGB IX reveals any time restriction.
• Presumption of a violation of the prohibition of discrimination under Section 167 (3) of the German Social Security Code (SGB IX): Pursuant to Section 22 of the AGG, the failure to implement the preventive procedure may give rise to the presumption that a dismissal was pronounced on the grounds of disability and thus violated the prohibition of discrimination under Section 167 (3) of the German Social Security Code (SGB IX), and that the dismissal is therefore null and void under Section 134 of the German Civil Code (BGB).
• Lowered burden of proof and explanation with regard to refuting the assumption: The employer can be accused of closer scrutiny of a severely disabled employee as disadvantageous treatment. The employer could be accused of thwarting the legal concept of the preventive procedure if the scrutiny is less strict and the resulting decision is only made at the end of the probationary period. For these reasons, and given the time required to carry out the preventive procedure with the authorities involved and the subsequent consideration of the facts of the case, the burden of proof and demonstration is reduced with regard to refuting the presumption.
  

Consequences for the practice

With its decision, the Cologne Higher Labour Court is moving towards an opinion in legal practice that, contrary to the previous case law of the Federal Labour Court, requires the implementation of the prevention procedure under Section 167 (1) of the German Social Security Code (SGB IX) from the very beginning of the employment relationship. The defendant has appealed against the second-instance judgment to the BAG (2 AZR 271/24), which thus has the opportunity to review its previous case law denying the requirement to carry out the preventive procedure under 3 167 (1) SGB IX in the first six months of the employment relationship.