Claims from the employment relationship

1. Compensation

a) Classification
Employees who have completed a scientific university education and have a corresponding activity, as well as other employees who carry out activities corresponding to their experience based on equivalent skills, receive remuneration according to remuneration group Ia case group. 1 b of Appendix 1a to the BAT, if at least five employees of at least remuneration group IIa are permanently subordinate to them by express order. According to a decision of the Fourth Senate of January 26, 2005 (- 4 AZR 6/04 -), the collective bargaining feature of “subordination” of employees requires the superior employee to have direct authority to issue instructions and tasks to the subordinates assigned to him. An employee is not “permanently subordinated to a manager by express order” in the collective agreement sense if he is directly subordinate to a subordinate of the manager, but not to the manager himself. For classification in the remuneration group Ia case group. 1a of Annex 1a to the BAT, the Fourth Senate decided in this judgment that the distinguishing feature of this remuneration group, according to which the activity differs significantly from the remuneration group Ib case gr. 1a must be highlighted cannot be justified by circumstances that make the distinguishing features of “particular difficulty and importance” in the sense of of remuneration group IIa case group. fulfill 1a. Those with the activity according to remuneration group Ib case group. 1 a, the increased responsibility required must be met so that the conditions for classification in the remuneration group Ia case group. 1a are met, be significantly exceeded.

In its judgment of June 8, 2005 (- 4 AZR 396/04 -) the Fourth Senate decided that a student who is employed at a university in addition to his studies in the International Office and is there without reference to an academic task as part of the student advisory service an internet portal for foreign student applicants has been redesigned and is covered by the personal scope of the BAT. Such an employee is not in accordance with § 3 letter g BAT is excluded from the scope of the BAT because he is not a research assistant in this sense. The definition of a “research assistant” is only fulfilled when working in student advisory services if the activity carried out is an academic service in nature. This was missing because the student’s activity was solely concerned with the computer-technical preparation of given information. Employees in office, accounting, other office and field service whose work, due to the level of responsibility involved, falls significantly outside of remuneration group IVa case group. 1b highlights, are in remuneration group III case group after five years of probation. 1a is grouped in remuneration group II of the general remuneration groups in Appendix 1a to the BAT/VKA. Due to the prohibition of self-contradiction, according to a judgment of the Fourth Senate of June 8, 2005 (- 4 AZR 406/04 -), an employer in the public service may be barred from arguing against an administrative employee after the probationary period has expired that his remuneration is due to the lack of a prerequisite for the offence of the classification characteristic on which his classification was previously based is above the collective agreement, so that despite the probation in his activity he does not take part in the probationary promotion provided for in the collective agreement for the classification characteristic. The Fourth Senate denied such contradictory behavior in the dispute. The administrative employee did not explain the requirement for a remuneration in line with the collective bargaining agreement according to remuneration group II. The Fourth Senate left open whether the burden of proof could be reversed due to the violation of the Evidence Act (NachwG) in the classification dispute. The public employer within the scope of application of the BAT regularly provides evidence of a brief characterization and description of the work to be performed by the employee (Section 2 Paragraph 1 Sentence 2 No. 5 NachwG) by means of a workplace or job description. In these cases, there is no obligation to provide evidence by stating the remuneration and case group. The NachwG does not provide for an obligation to prove whether there is an opportunity to advance to probation.

The Fourth Senate had to decide on the effectiveness of a deadline regulation for the promotion of comprehensive school teachers. The deadline regulation affects teachers who are authorized to teach at secondary levels I and II (so-called combiners). You work as an employee in the school service of the state of North Rhine-Westphalia (NRW) at comprehensive schools. In the employment contract, remuneration is agreed in accordance with teacher guidelines, which the state of North Rhine-Westphalia regularly applies. The teachers receive remuneration according to remuneration group III of Appendix 1 a to the BAT. At the end of 2000, the state of North Rhine-Westphalia passed a so-called transition law. For civil servants, this provides for the transfer of all so-called combiners at high schools and those at comprehensive schools who were hired in the 1996/1997 school year at the latest to salary group A 13. For the so-called combiners in employment relationships, a state decree of December 20, 2001 stipulates that they will be transferred to remuneration group IIa BAT with effect from January 1, 2002 under the same conditions as those provided for in the transition law. In its judgment of July 6, 2005 (- 4 AZR 27/04 -), the Fourth Senate decided that the provisions of the Transition Act with their differentiations between high school teachers and comprehensive school teachers as well as within the group of comprehensive school teachers after their entry date do not violate the general principle of equality in Art 3 para. 1 GG violated. The legislature has a wide scope for discretion. The different remuneration of teachers depending on the type of school and the length of their employment can be traced back to obvious reasons of sufficient importance. Likewise, the classification of employed teachers in accordance with the provisions of the Transition Act does not violate the principle of equal treatment under labor law. This only applies to the employer’s creative behavior and not to the mere implementation of standards. This is the higher grouping of employed teachers in accordance with the Transition Act. The defendant state was obliged to do this anyway according to the teacher guidelines.

The question of classifying an employee of a council faction from “Alliance 90/The Greens” was before the Fourth Senate for decision. The employee was initially employed by the faction with remuneration according to remuneration group VI b of Annex 1 a to the BAT. He has been in the city’s service since November 1, 1986. He was initially employed as a parliamentary group secretary on a temporary basis. In December 1991, the parties agreed that the plaintiff would continue to be employed as an “administrative employee” for an indefinite period, specifying his classification in remuneration group VII BAT. He received an allowance for the duration of his work in the group’s office. According to a ruling by the Fourth Senate of December 14, 2005 (- 4 AZR 474/04 -), the employee’s classification is not determined by his activity as a parliamentary group employee, because this has only been assigned to him temporarily. This follows from §§ 22, 23 BAT, according to which the employee’s classification is determined according to the activity that he or she is to perform, which is not just temporary. If the employee is temporarily assigned another higher-level job, he has to do so in accordance with § 24 BAT, in accordance with the further requirements of this tariff standard, you are entitled to a personal allowance for the duration of the performance of this activity. The BAT does not provide for a time limit for the temporary transfer of a higher-value activity. The classification of the activity of a group employee as only temporary corresponds to reasonable discretion, since the non-permanent transfer of such an activity is in the nature of the matter. The Senate therefore did not legally assess the activity as a parliamentary group employee. The employee’s possible claim to a higher personal allowance in accordance with Section 24 BAT was not the subject of the legal dispute.

b) Reservation of revocation

In its judgment of January 12, 2005 (- 5 AZR 364/04 -) the Fifth Senate decided that, according to Section 308 No. 4 of the German Civil Code (BGB), the formal agreement of the employer’s right to change or deviate from the promised remuneration is invalid , if the agreed change or deviation is not reasonable for the employee, taking into account the interests of the employer. The agreement on a right of withdrawal is in accordance with. § 308 No. 4 BGB is reasonable if the revocation is not intended to be without reason, but is necessary as an instrument of adjustment due to the uncertainty of the future development of circumstances. Following previous case law on the admissibility of a revocation, it is permissible to agree on a reservation of revocation if the revocable share of the total earnings is below 25-30%, the collective wage is not undercut and the revocation is not intended to be unfounded. The prerequisite and scope of the reserved change must be in accordance with. § 307 Abs. 1 and 2, § 308 No. 4 BGB should be made as specific as possible in the contract text. The revocable benefit must be clear in terms of type and amount. The contractual clause

must also at least indicate the direction from which the revocation should be possible (economic reasons, performance or behavior of the employee). These requirements do not conflict with special features of labor law (Section 310 Paragraph 4 Sentence 2 BGB). The requirements mentioned have also been in effect since January 1, 2003
Formal employment contracts concluded before January 1, 2002 apply. If such an “old contract” lacks the required minimum
To the extent that the reasons for revocation are specified, the resulting gap in the contract can be closed by a supplementary contract interpretation. A bond
of the employer to the agreed service without the possibility of revocation would retroactively disproportionately interfere with private autonomy. In addition to the content control
In accordance with the agreement on the right of revocation in accordance with Sections 305 ff. of the German Civil Code (BGB), the specific exercise of the revocation is still subject to control on a case-by-case basis
gem. § 315 BGB.

The Tenth Senate had decided on the revocation of a functional allowance in accordance with. the collective agreement on the granting of a functional allowance to university workers and the
Berlin Research Institute for Hydraulic Engineering and Shipbuilding on July 1, 1971. The basis for the payment of the functional allowance was an additional contractual agreement
from March 1990, which was subject to revocation at any time. In addition, the employment contract referred to the provisions of the federal collective agreement for workers in municipal administrations and companies of January 31, 1962 with the additional collective agreements concluded and the collective agreements that replaced them – all in their respective applicable versions. According to a ruling by the Tenth Senate of January 26, 2005 (- 10 AZR 331/04 -), the revocation of the additional agreement is ineffective because, within the scope of the Berlin Personnel Representation Act (PersVG), the revocation of a contractually agreed functional allowance is subject to the co-determination of the staff council. A revocation without prior implementation of the co-determination procedure in accordance with. § 87 Nr. 3 i.V.m. § 79 Abs. 1 PersVG Berlin is ineffective. In addition, the Tenth Senate affirms the entitlement to the functional allowance regardless of the effectiveness of the revocation. If the employment contract of an employee who is not bound by a collective agreement contains an equal opportunity agreement and the employee would then be entitled to a functional allowance in accordance with Art. the collective agreement for allowances, the revocation of the additional agreement does not invalidate the entitlement to the allowance if the additional agreement stipulates that the employment contract is not affected by a revocation. This also applies if the collective agreement for allowances has since been terminated and for employees bound by collective agreements only in accordance with. § 4 Abs. 5 TVG continues to have an effect.

c) Remuneration for overtime, night and public holiday work
According to Section 3 ArbZG, employees’ working hours on a working day may not exceed eight hours. It can only be extended to up to ten hours if an average of eight hours on working days is not exceeded within six calendar months or within 24 weeks. According to a decision of the Fifth Senate of September 28, 2005 (- 5 AZR 52/05 -), an employment contract regulation according to which overtime is compensated by the gross salary paid only covers the permissible overtime within the scope of Section 3 ArbZG and not beyond that hours worked. This impermissible overtime is covered by Art. § 612 Abs. 1 BGB a claim to remuneration. The purpose of the employment ban in Section 3 ArbZG is to prevent work performance and thus excessive demands on the employee, not to exclude the right to remuneration. If the remuneration for regular working hours is specified in the employment contract, overtime must be paid proportionately if there is no regulation in this regard (Section 612 Paragraph 2 BGB).

According to § 6 Abs. 5 ArbZG, the employer must pay the night worker an appropriate number of paid days off or an appropriate supplement to the gross wages to which he is entitled for the hours worked during the night, unless there are compensation regulations in a collective agreement. After the employment relationship has ended, night work can only be compensated for by paying a supplement. According to a decision of the Fifth Senate of August 31, 2005 (- 5 AZR 545/04 -), members of an emergency service are regularly entitled to a night supplement of 10% of their wages in the sense of. from § 6 para. 5 ArbZG appropriate. The supplement is only intended to compensate for the difficulty associated with night work in the emergency services. It should be taken into account that in the rescue service there is a significant amount of willingness to work and therefore also times of relaxation. In addition, the purpose of restricting night work, which is otherwise associated with the surcharge, cannot be achieved because it is impossible to waive night work in the emergency services. The payment of an appropriate supplement for night work in accordance with Section 6 Para. 5 ArbZG can be done in different ways. In addition to paying separate supplements, an increase in the basic wage may be considered. If the night work supplements are paid as a flat rate with the basic wage, a corresponding contractual provision in the general terms and conditions must comply with the transparency requirement of Section 307 Paragraph. Observe 1 sentence 2 BGB. According to this, the factual requirements and legal consequences must be described as precisely as possible so that the employer does not have any unjustified scope for assessment. Because the employee is a consumer in the sense of Section 310 Para. 3 No. 3 BGB, the individual circumstances surrounding the conclusion of the contract must also be taken into account when checking whether the flat-rate payment of the night work supplement is clearly and understandably regulated. These can – as in the case decided by the Fifth Senate – lead to a non-transparent regulation of content control according to § 307 para. 1 sentence 2 BGB withstands.

d) Performance bonus
According to § 4 para. 4 of the additional district collective agreement of September 11, 1962 for municipal workers in North Rhine-Westphalia (BZT-G NRW) to Section 20 of the federal collective agreement
For workers in municipal administrations and companies, performance bonuses are paid to workers whose performance is consistently above the average of the performance that can normally be expected from workers in the same professional group. This must be decided annually. The services, which can be revoked at any time,
The employer grants maintenance supplements based on a written, justified proposal from the committee designated for this purpose in the collective agreement. Before revocation, this communication is
mission to hear. According to a judgment of the Sixth Senate of July 21, 2005 (- 6 AZR 21 441/04 -), the interpretation of Section 4 Para. 4 BZT-G/NRW the limitation of the employment
maintenance surcharges for one year. Although the wording of the tariff provision does not provide for a clear time limit, this follows from the obligation to make a new decision every year. Since the total volume of surcharges has to be determined and distributed every year, the tariff regulation requires that the previous year’s distribution is only effective for one year. This does not render the revocation option provided for in the collective agreement irrelevant. It makes it possible to revoke the benefit supplements before the end of the regular benefit period of one year.

e) Continued payment of wages in the event of illness
§ 3 Abs. 1 Sentence 1 EFZG grants an employee who is unable to work a right to continued remuneration for a period of six weeks. If the employee becomes unable to work again due to illness after the ability to work has been restored, a new claim arises in accordance with Section 3 Paragraph. 1 sentence 1 EFZG for continued payment of wages for a period of six weeks if the inability to work is due to another illness. If the same illness is the cause of the new inability to work, this is a continuation of the illness. In this case, the employer’s obligation to provide benefits does not arise anew with each individual illness. According to § 3 para. 1 Sentence 2 No. 1 and 2 EFZG, in the event of a continued illness, a new entitlement to continued payment of wages only exists if the employee was not unable to work due to the same illness for at least six months before the new incapacity to work (No. 1) or there is a period of time since the beginning of the first incapacity to work due to the same illness of twelve months has expired (No. 2). According to a decision of the Fifth Senate of July 13, 2005 (- 5 AZR 389/04 -), if two illnesses do not lead to incapacity for work, but only because they occur together, there is a continuation illness if one of the two illnesses later occurs occurs again and alone leads to incapacity to work. In this case too, a previous inability to work was the cause of the new illness. The Fifth Senate further decided that an employee who within the periods of § 3 para. 1 Sentence 2 EFZG, who is unable to work for more than six weeks must demonstrate that there is no ongoing illness. If this is disputed by the employer, the employee is responsible for presenting the facts that allow the conclusion that there was no ongoing illness. He must release his doctor from his duty of confidentiality. However, the employer bears the objective burden of proof for the existence of a continuing illness. This follows from the linguistic version of Section 3 Paragraph. 1 set 2No. 1 and 2 EFZG.

f) Delay in acceptance
It follows from Section 297 of the German Civil Code (BGB) that the employer’s default in acceptance is excluded if the employee is not capable or unwilling to perform. Those in § 297
The condition of willingness to perform, which is not expressly mentioned in the German Civil Code (BGB), arises from the fact that an employee who is unwilling to perform renders himself unable to do so
to effect work performance. The subjective willingness to perform must be present throughout the entire period of delay. According to a judgment of the Fifth Senate of July 13, 2005 (- 5 AZR 578/04 -), the requirement of willingness to perform relates to the contractually agreed activity. Regardless of the termination that causes the delay in acceptance, there must be a willingness to carry out the work in question for the contractual partner under the contractual conditions. There is no willingness to perform if the employee makes the demand to waive the effects of the termination a condition of starting work. If there is uncertainty about the effectiveness of the termination, he has no legitimate interest in making his willingness to work dependent on the employer abandoning his legal position altogether. This also applies if the employer does not “take back” the termination and offers work in accordance with the contract despite the termination.

g) Special payments
According to the case law of the Tenth Senate, the entitlement to a bonus from company practice can be terminated by a changed company practice,
if the employer declares that the annual payment of the bonus is a voluntary benefit that can be revoked at any time, to which there is no legal entitlement – even in the future – and that the employees do not object to the new handling over a period of three years. In its judgment of November 24, 2004 (- 10 AZR 202/04 -), the Tenth Senate decided that these principles on the so-called “contrary” operational practice are only applicable to cases in which the claim arose through a corporate practice, and not in cases where it is based on an express contractual agreement. If the right to a special payment is agreed in the employment contract by reference to a collective agreement, the collective agreement referred to becomes the content of the employment contract. The special payment agreed in this way can only be subject to reservation, deterioration or eliminated through termination or contractual agreements. The silence regarding a detrimental change to the employment contract proposed to the employee can only be viewed as consent under strict conditions. This presupposes that the change has an immediate effect and that the employee continues to work in the knowledge of these effects, even though an express contradiction would have been expected according to common practice, taking into account all the circumstances of the individual case. If the employer grants its employees a Christmas bonus as a voluntary benefit in accordance with the general rules it has set, it is bound by the principle of equal treatment under labor law according to the established case law of the Federal Labor Court. This principle is not only violated when individual employees are arbitrarily disadvantaged. If the employer forms groups of advantaged and disadvantaged employees, the principle of equal treatment prohibits the formation of unrelated groups. Group formation corresponds to objective criteria if the reason for the differentiation arises from the performance purpose. According to a decision of the Tenth Senate of October 12, 2005 (- 10 AZR 640/04 -), the purpose of a Christmas bonus does not generally justify contributing to the additional expenses incurred on the occasion of Christmas and additionally rewarding services rendered in the past , to differentiate between blue-collar and white-collar workers in terms of height. However, the employer is not prevented from paying a higher Christmas bonus to the group of employees if objective criteria justify the better position compared to the group of commercial employees. If its differentiating aspects and the purpose of paying the higher Christmas bonus are not readily apparent, the employer must present the reasons for the different treatment in such a substantiated manner that it is possible to assess whether the group formation corresponds to objective criteria. If he justifies the better position of the employees with his intended stronger loyalty to the company, the employer’s general, subjective assessment that employees are more desirable on the labor market due to their higher level of education and qualifications is not sufficient to demonstrate objective criteria for the unequal treatment. The group formation must be tailored to the employer’s business and based on comprehensible, plausible aspects. If there is no objective, real need for the betterment of employees, the disadvantaged workers can demand a Christmas bonus in accordance with the advantaged group of employees.

h) Exclusion periods
Employment contracts often contain exclusion periods, the failure to do so will result in the forfeiture of claims arising from the employment relationship. After the law of general terms and conditions (§§ 305 ff. BGB) has been applicable to employment contracts since January 1, 2002, it was controversial to what extent exclusion periods are still permissible in pre-formulated employment contracts. With judgment of May 25, 2005 (- 5 AZR 572/04 -) the Fifth Senate has decided on the effectiveness of the second stage of an exclusion period, according to which all claims arising from the employment relationship must be asserted in writing by the contracting parties within a period of six weeks from their due date and in the event of rejection by the The opposing party must be sued within four weeks. The second stage of the exclusion period regarding the filing of a claim in court is ineffective if it is pre-formulated for a large number of contracts with the employer (Section 305 Paragraph 1 BGB), but also if the clause was only intended for one-time use and the employee is due to it The preliminary wording could not have any influence on the content of the clause (Section 310 Paragraph 3 No. 2 BGB). The second stage of the exclusion clause is not already in accordance with. §§ 134, 202 Abs. 1 BGB is void in its entirety. § 202 Abs. 1 BGB not only prohibits a pre-agreed relief from the statute of limitations in cases of liability due to intent, but also the agreement of corresponding exclusion periods. An exclusion period can therefore be set in accordance with Section 202 Para. 1, 134, 139 BGB may be partially invalid insofar as they include liability for intent. However, the Senate considered the second stage of the exclusion period to be assessed to be divisible and assumed that it is only ineffective to the extent that it relates to the legally clearly defined cases of the statutory prohibition in Section 202 Paragraph. 1 BGB refers. Otherwise it is effective. Exclusion periods can generally be agreed in formal employment contracts (Section 305 Paragraph 1 BGB). The second stage of an exclusion period, which requires the filing of a claim in court, does not already violate Section 309 No. 13 BGB. However, a deadline of four weeks for filing a claim in court is ineffective because a deadline of less than three months is unreasonably short. An exclusion period that requires the filing of a claim in court differs in accordance with of Section 307 Para. 2 BGB depends on the statutory statute of limitations. Section 202 of the German Civil Code (BGB) does allow the regular limitation period of three years to be shortened. However, a notice period of four weeks is not compatible with essential basic principles of the statutory statute of limitations and therefore, contrary to the requirements of good faith, leads to an unreasonable disadvantage for the employee. When determining the appropriate length of the exclusion period as part of the general terms and conditions control, it must be taken into account that labor law prefers to provide for relatively short periods to protect legal positions. Collective agreements often contain significantly shorter exclusion periods of a few weeks to several months compared to the statutory limitation periods. Such deadlines are, in their entirety, special features of labor law in accordance with. 310 Abs. 4 Sentence 2 BGB must be taken into account appropriately. The three-month period in Section 61 b ​​(1) provides a suitable benchmark. 1 ArbGG. The ineffectiveness of the individual contractual exclusion clause leads to its elimination without replacement if the employment contract is otherwise maintained. A so-called validity-preserving reduction is not possible according to Section 306 of the German Civil Code (BGB). A severability clause in the employment contract does not change this. With the judgment of May 25, 2005 (- 5 AZR 572/04 -) the Fifth Senate also decided that the content control of employment contracts should be carried out in accordance with the standards of Section 310 Para. 3 BGB is expanded. Pre-formulated contractual conditions are also subject to this if they are only intended for one-time use and if the employee was unable to influence their content due to the pre-formulation (Section 310 Paragraph 3 No. 2 BGB). This follows from the fact that the employee is a consumer when concluding the employment contract. of § 13 BGB and the employment contract is a consumer contract in the sense of of Section 310 Para. 3 BGB. With the definition of the consumer in Section 13 of the German Civil Code (BGB), the legislature has broken away from general usage and chosen an independent definition. According to its systematic position in the general part of the BGB, Section 13 BGB applies to all types of legal transactions. The history of Section 13 of the German Civil Code (BGB) also supports the classification of the employee as a consumer. The concept of consumer provides a broad basis for the application of consumer protection regulations. But it has no meaning that can be determined abstractly. Only the other standards that are based on the status of a consumer can provide information. The Fifth Senate has also made it clear that Sections 305 ff. BGB only refer to general terms and conditions (Section 305 Paragraph 1 BGB) and consumer contracts (Section 310 Paragraph 3 BGB). Individual contractual agreements have according to § 305 BGB takes precedence. You will be subject to an equity review in the sense of: a general adequacy test according to Section 242 of the German Civil Code (BGB) that is not related to the specifics of the case does not take place. Judicial control remains unaffected in the event of structural disruptions to contractual parity.

According to a decision of the Fifth Senate of August 31, 2005 (- 5 AZR 545/04 -), an exclusion period, which is regulated in a comprehensive formal employment contract in the middle of the final provision according to severability clauses and written form clauses, is so unusual given the external appearance of the contract that the employee does not have to reckon with it. It is according to § 305 c Abs. 1 BGB is not part of the employment contract. The clause must also clearly state the consequences of missing a deadline, i.e. the forfeiture of claims. This follows because of the far-reaching consequences of exclusion periods from the transparency requirement (Section 307 Paragraph 1 Sentence 2 BGB). The Fifth Senate further decided that a pre-formulated, unilateral exclusion period, according to which only the employee has to assert claims from the employment relationship within a certain period of time, according to Section 307 Para. 1 Sentence 1 BGB is ineffective because it unreasonably disadvantages the employee. It is not apparent that it is more difficult for the employer to enforce a claim than for the employee. The one-sided difficulty in enforcing claims that affects the employee and the complete loss of claims only for the employee if the deadline is missed contradicts a balanced contract design.

Following the decision of May 25, 2005 (- 5 AZR 572/04 -), the Fifth Senate decided in its judgment of September 28, 2005 (- 5 AZR 52/05 -) that
an exclusion clause that requires the employee to raise all claims arising from the employment relationship in writing within two months of the due date
contrary to the requirements of good faith and unreasonable disadvantage (Section 307 Paragraph 1 Sentence 1 BGB). It is based on the essential basic principles of the statutory statute of limitations.
Employment law is not compatible (Section 307 Para. 2 No. 1 BGB) and restricts essential rights that arise from the nature of the employment contract in such a way that the achievement of the purpose of the contract is at risk (Section 307 Para. 2 No. 2 BGB). A period of less than three months for the first filing of claims is unreasonably short. For the start of the period, the individual contractual exclusion period may be linked to the due date of the claim. This corresponds to their purpose of quickly creating legal clarity.

The term due date is determined by the courts for employment matters in accordance with interests, taking into account the creditor’s level of knowledge and subjective attribution considerations.

i) Interest
According to § 288 Abs. 1 BGB, a monetary debt is subject to interest during the default. The default interest rate for the year is 5 percentage points above the base interest rate. According to
§ 288 Abs. 2 BGB, the interest rate for payment claims for legal transactions in which a consumer is not involved is 8 percentage points above the base interest rate.

and the employee only receives interest in the amount of 5 percentage points above the base interest rate. The higher default interest rate of eight percentage points presupposes that the interest-bearing claims arise from business transactions between companies or between companies and public bodies, because the legislature with Section 288 Para. 2 BGB has implemented the EU Directive 2000/35/EC of June 29, 2000, the scope of which is limited to such business transactions. The Tenth Senate left it open whether an employee is a consumer in the sense of his employment contract. of § 13 BGB.

2. Urlaub
According to the Lower Saxony law on educational leave for employees (NBildUG), the employer is obliged to give employees paid leave for measures that serve political, professional, general and cultural education. According to a ruling by the Ninth Senate of March 15, 2005 (- 9 AZR 104/04 -), a salesperson in a textile store can, in accordance with Section 2 in conjunction with Section 5 NBildUG, request paid time off from his employer to take part in the Swedish II and III language courses . These language courses serve for general further training. The inclusion of the employee’s general education in the positive catalog of permissible educational events drawn up by the Lower Saxony legislature is not constitutionally objectionable. This obligation extends into the provisions of Article 12 para. 1 GG guaranteed occupational freedom for employers. However, this impairment is justified by reasons of public interest. According to the case law of the Federal Constitutional Court, the employer’s obligation to release the employee to participate in vocational or political education events in accordance with state law is compatible with the Basic Law. The Federal Constitutional Court has justified the public interest in promoting further training for employees by, among other things, life-long
Under the conditions of ongoing and accelerating technical and social change, long learning becomes a prerequisite for individual self-belief
capitalization and social adaptability in changing circumstances.
According to the decision of the Ninth Senate, these considerations of the Federal Constitutional Court apply equally to general continuing education. It serves to develop the personality of the employee and can be made the goal of legislative measures. The general education of the employee is not outside the relationship of responsibility to the employer. It benefits him at least indirectly. The acquisition of knowledge in an organized learning process promotes the intellectual mobility of employees. The acquisition of knowledge in an organized learning process promotes the intellectual mobility of employees.
According to the statutory vacation law, vacation not granted must be compensated upon termination of the employment relationship (Section 7 Paragraph 4 BUrlG). According to a decision of the Ninth Senate of March 15, 2005 (- 9 AZR 143/04 -), if block time off begins for an employee in partial retirement, this does not constitute an end to the employment relationship. Open vacation entitlements therefore do not need to be compensated according to the legal regulations. The employee bears the risk that vacation can no longer be taken due to ongoing incapacity to work before the release phase begins. An analogous application of Section 7 Para. 4 BUrlG is not required. There is no unplanned loophole in the regulations. For example, the legislature has extended the deadlines for the forfeiture of vacation entitlements in maternity protection law (Section 17 MuSchG). Although comparable problems arise in the block model of partial retirement work, he has refrained from making a corresponding regulation in the partial retirement law. The principle of equal treatment under labor law does not require the analogous application of Section 7 Paragraph. 4 BUrlG. There is no impermissible unequal treatment of employees in the block model and those who continue to work with reduced working hours during partial retirement. Both cases are not comparable due to their factual and legal differences. The federal employee collective agreement and the collective agreement regulating partial retirement from May 5, 1998 do not contain any different regulations.

With a ruling of May 10, 2005 (- 9 AZR 251/04 -), the Ninth Senate decided that a volunteer helper from the technical relief organization (THW) who is called in for an assignment during his vacation has a claim against his employer for subsequent granting of the has vacation days on which he has to do work for the THW. The THW volunteer’s claim to exemption, which is specified by the employer, is in accordance with Section 243 Paragraph. 2 i.V.m. § 275 Abs. 1 BGB without replacement if the helper is called upon to work for the THW during the vacation. The employer does not have this impossibility according to Section 280 Paragraph. 1 BGB, because in principle all events that disrupt vacations fall within the risk area of ​​the individual employee as part of their personal fate. § 9 BUrlG, which provides that periods of subsequent
proven incapacity for work cannot be counted towards annual leave is neither directly nor correspondingly applicable. However, due to the prohibition of discrimination in Section 3 Para. 1 Sentence 1 THW – Helpers’ Rights Act in such a way that the employer does not take into account the specified vacation but instead grants it again. If the employee has asserted this claim within the transfer period but the employer has rejected it, the employer is in default. As a result, he must grant this vacation as a substitute vacation after the end of the transfer period by way of compensation (§§ 275 Para. 1, 280 Para. 1, 286 Para. 1 Sentence 1, 287 Sentence 2, 249 Para. 1 BGB ).

3. Partial retirement

According to Section 41 BAT-O, if the employee dies, the surviving spouse, among others, receives the death benefit (Section 26 BAT-O) for the remaining calendar days of the month of death and for two additional months. According to a ruling by the Sixth Senate of May 12, 2005 (- 6 AZR 311/04 -), the surviving dependent’s entitlement to death benefit in accordance with Section 41 BAT-O for employees in partial retirement is calculated based on part-time earnings, regardless of whether the death of the Employees employed in part-time retirement in the block model occurred in the working phase or in the release phase.

This results from the interpretation of Section 41 BAT-O. Even during the time in which the employee works full-time in the block model, he or she already receives the reduced salary. This is his remuneration in terms of of Section 26 BAT-O. He works hard so that he can continue to be paid like a part-time employee during the release phase, even though he is not working. This means that the death benefit is based on the standard of living of the deceased employee at the time of death. Nothing else arises from Section 9 Paragraph. 3 of the collective agreement regulating part-time retirement work dated May 15, 1998 (TV ATZ). According to this provision, the difference to the remuneration that the employee would have earned without partial retirement must be paid if the partial retirement employment relationship ends due to death during the working phase of the block model. This does not lead to the amount of the death benefit increasing in accordance with § 41 BAT-O determines full-time remuneration. § 9 Abs. 3 TV ATZ finally regulates the labor law consequences of the early termination of a part-time retirement employment relationship in the block model.
There is no connection to Section 41 BAT-O or Section 26 BAT-O.

Following the case law of the Ninth Senate, the Tenth Senate decided in its judgment of February 23, 2005 (- 10 AZR 602/03 -) that, insofar as in a partial retirement relationship according to the block model, the working phase continues into the period after the opening of insolvency proceedings the employer’s assets fall, the employee’s claims for this period become mass liabilities in the sense of. Of Section 55 Para. 1 No. 2 InsO are. This also applies to top-up benefits and top-up contributions to pension insurance and regardless of whether the insolvency administrator made use of the work. Once the insufficiency of assets has been reported (§ 208 InsO), the assets’ liabilities can no longer be claimed by way of an action for performance. This follows from the enforcement requirement of Section 210 InsO.
The employee can only have the claims determined as mass liabilities. In principle, effective notification of the insufficiency of assets can only be made after the insolvency administrator has opened insolvency proceedings. However, the provisional insolvency administrator can often assess the question of insufficient assets. This is particularly the case if he is ordered by the insolvency court to issue an expert opinion in accordance with. § 22 Abs. 1 No. 3 InsO was commissioned. If the provisional insolvency administrator has already identified insolvency insolvency in this report to be drawn up by him and reported it to the insolvency court, a new report after the opening of insolvency proceedings is exceptionally unnecessary if the provisional insolvency administrator is appointed as insolvency administrator and the insolvency court recognizes the insolvency in the insolvency court in the opening decision
determined. The Tenth Senate further decided that if an insolvency administrator does not terminate the partial retirement relationship on the first date on which he is legally able to do so after notification of the inadequacy of the assets, new assets arise for the subsequent period. This also applies if the administrator does not use the work but instead releases the employee from work. The Senate maintains that there is no legal obstacle to termination from Section 1 of the KSchG. New assets liabilities can generally be asserted by way of a performance action.

4. Contractual penalty

Following its decision of March 4, 2004 (- 8 AZR 196/03 -), the Eighth Senate again dealt with the question of the effectiveness of promises of contractual penalties during the reporting period. In a judgment of April 21, 2005 (- 8 AZR 425/04 -) he decided that a contractual penalty is ineffective if it is forfeited due to “culpable behavior by the employee that violates the contract, which causes the employer to terminate the employment relationship without notice”. It violates the transparency requirement of Section 307 (1). 1 sentence 2 BGB and the content is in accordance with. § 307 Abs. 1 sentence 1 BGB inappropriate. An unreasonable disadvantage can arise if a provision is not clear and understandable. The contractual penalty agreement mentioned is ineffective due to a lack of specificity because it does not indicate which breach of duty causes the contractual penalty to be forfeited. The triggering breach of duty must be clearly stated so that the promisee can prepare for it. Global promises of punishment that aim to secure all contractual obligations are ineffective. The contractual penalty regulation mentioned is also inappropriate in terms of content. Inappropriate in the sense of Section 307 Para. 1 Sentence 1 BGB is any interference
Damage to a legally recognized interest of the employee that is not justified by the legitimate and equitable interests of the employer or is offset by equivalent advantages. The contractual penalty regulation does not do justice to the interests of both parties to the employment contract because it is based one-sidedly on the employee’s breach of duty. There is no legitimate interest on the part of the employer for this. In the event of culpably breaching the contract that causes the employer to terminate the contract without notice, the balance of interests is primarily brought about by the possibility of the employer terminating the contract without notice. A contractual penalty, which is forfeited through any culpable, breach of contract behavior on the part of the employee that causes the employer to terminate without notice, is aimed at securing all contractual obligations and contains an unreasonable excess.

According to a ruling by the Eighth Senate of August 18, 2005 (- 8 AZR 65/05 -), a contractual penalty is imposed in each individual case in the amount of one to three times the monthly salary is forfeited, in accordance with 307 Abs. 1 sentence 1 BGB ineffective. This represents an unreasonable disadvantage for the employee, because the employer’s right to determine performance within the framework he has set is unfair and unjustified. There is already a lack of an appropriate framework because a contractual penalty for each individual case of a competition violation amounting to one to three months’ salary can no longer be viewed as appropriate, but rather represents unreasonable over-security. If the contractual penalty primarily serves to simply create new monetary claims that are separate from the user’s material interest, the employer lacks a legitimate interest.

5. Damages and Liability
Persons whose employment relationship ends must register as jobseekers immediately after they become aware of the time of termination before using the employment agency’s services in accordance with Section 37 b SGB III. In the case of a fixed-term employment relationship, notification must be made no earlier than three months before its termination. The violation of the obligation leads to a reduction in the entitlement to unemployment benefit if unemployment occurs (Section 140 SGB III). Employers should hire employees in accordance with Section 2 Para. 2 Sentence 2 No. 3 SGB III inform you about this obligation to report immediately before the termination of the employment relationship.

In its judgment of September 29, 2005 (- 8 AZR 571/04 -) the Eighth Senate decided that the employee is not entitled to a claim for damages against the employer for failure to provide information about the obligation to register as a job seeker at an early stage. The violation of the obligation to provide information under Section 2 Para. 2 Sentence 2 No. 3 SBG III by the employer does not lead to a claim for damages under civil law. The obligation to provide information is not intended to protect the employee’s assets and does not specify the employer’s duty of care. A benefit for the individual employee from Section 2 Para. 2 Sentence 2 No. 3 SBG III only occurs as a legal reflex. It is also a target regulation. The systematic position and purpose of the norm speak for a purely socio-legal regulatory context. With regard to the obligation to report, Section 37 b SGB III clearly establishes a social law obligation to the detriment of the employee. The person must fulfill the obligation on their own responsibility and, if necessary, have knowledge of their social security obligations or
provide responsibilities. § 2 Abs. 2 Sentence 2 No. 3 SGB III does not shift this obligation to the employer. The legal consequences of late reporting in accordance with Section 140 SGB III, which are not covered by the employer’s obligation to provide information, only affect the defaulting employee. In Section 2 Para. 2 Sentence 2 No. 3 SGB III is not a protective standard in accordance with. § 823 Abs. 2 BGB. There is no general contractual additional obligation of the employer derived from Section 242 of the German Civil Code (BGB) to inform the employee about early notification to the employment agency.
The Ninth Senate had to decide on the liability of an employer who promoted the purchase of unlisted employee shares in the parent company by granting earmarked low-interest loans. In a judgment of October 4, 2005 (- 9 AZR 598/04 -) he decided that the employer is obliged to inform employees about the special risks of purchasing non-tradable shares. This applies not only to the fact that there is no stock market listing, but also to the fact that without a stock market listing, the company’s shareholding cannot be traded on the market and is associated with the additional risk of not being able to be commercially exploited. This obligation to provide information follows from the employer’s additional obligation under the employment contract to take the rights, legal interests and interests of the employee into account (Section 241 Paragraph 2 BGB new version). In principle, an employee cannot and does not have to assume that his employer may offer him economically pointless investments by financing employee shares. The culpable breach of the duty of disclosure by the employer leads to a claim for damages from the employee. The employer can demand that the employer step away from the economically senseless obligation to repay the loan step by step
Return of the shares to be exempted. The claim for damages does not stand in the way of the fact that the parent company merges the employer into itself and this results in the acquisition of own shares, which is inadmissible under Section 71 AktG. This follows from the fact that Section 20 Para. 1 No. 1 UmwG stipulates that claims are excluded from universal succession which, by their nature, are not transferred to a universal successor. The merger does not mean that the legal entities involved in it can escape their claims for damages. The claim for damages takes precedence over the corporate law requirement of capital preservation.
If an employee shareholding company operated in the legal form of a GmbH falls into insolvency, according to a ruling by the Eighth Senate of November 24, 2005 (- 8 AZR 1/05 -), the employees cannot in principle claim responsibility for the loss of their claims either from the shareholders or the managing director of the employee shareholding company use personally. They are only personally liable if there is a special reason for liability. This is recognized in exceptional cases if representatives, intermediaries or administrators have claimed a particular degree of trust or had a direct economic interest of their own in concluding the transaction. The Eighth Senate rejected these requirements.

6. Compensation receipt
After the employment relationship ends, employees often sign a “settlement receipt”. In its judgment of February 23, 2005 (- 4 AZR 139/04 -), the Fourth Senate decided that a clause pre-formulated by the employer, according to which all claims arising from the employment relationship and its termination, regardless of the legal basis for which they may have arisen, have been paid for and completed, in accordance with § 305 c Abs. 1 BGB has not become part of the contract. According to § 305 c paragraph. 1 BGB, provisions in general terms and conditions that are so unusual given the circumstances, especially the external appearance of the contract, that the user’s contractual partner need not expect them will not be part of the contract. The contractual clause mentioned, which is a negative acknowledgment of guilt in the sense of of Section 397 Para. 2 BGB does not become part of the contract if the employer includes it in a declaration with an incorrect or misleading heading – here: “Return of your documents” – without any special reference or typographical emphasis. In addition, the negative acknowledgment of guilt was presented to the employee at an appointment that was held solely for the purpose of
Handover of his working papers had been agreed. He could not assume that he would have to make any further statements, including legal ones, at this appointment.

7. Testimony
When the employment relationship is terminated, the employer must provide the employee with a certificate detailing the nature and duration of the employment relationship. At the employee’s request, the certificate must cover performance and leadership (until December 31, 2002, §§ 73 HGB, 113 GewO, 630 BGB; since January 1, 2003, § 109 GewO). According to a decision of the Ninth Senate of May 10, 2005 (- 9 AZR 261/04 -), the employer is allowed to mention an employee’s parental leave in a certificate if the downtime represents a significant actual interruption of employment. This follows from the principle of the truth of testimony. Significant downtime by an employee must be documented by the employer in the certificate if this would otherwise give third parties the false impression that the employee’s assessment was based on actual work performance corresponding to the duration of the legal employment relationship. Only if the assessing employer sees himself in a position, in his opinion,
Despite the employee’s significant downtime, these do not need to be mentioned objectively in the certificate. A schematic boundary cannot be drawn between essential and insignificant downtimes. A schematic boundary cannot be drawn between essential and insignificant downtimes. This is neither an unjustified hindrance to professional advancement nor a disadvantage in the sense of. from § 612 a BGB.