Self-inflicted accident

Here you will find an overview of the key decisions in 2011. For an overview of the past years sorted by subject matter, please follow the corresponding link:

§ 1

Kündigung eines Orchestermusikers

If the employer dismisses an orchestra musician because he wants to reduce the size of the orchestra, the labor courts cannot review this decision with regard to its artistic expediency. The plaintiff is a horn player. He had been employed by the defendant as an orchestra musician since 1991. After the Free State of Thuringia announced that it wanted to significantly reduce the grants previously granted, the defendant decided to support the orchestra – among other things. by eliminating all horn player positions – to reduce the size and to supplement the remaining core orchestra if necessary. She terminated the employment relationship with the plaintiff after hearing the works council on July 31, 2008. Whether, as stipulated in Section 5 of the relevant collective agreement, the orchestra board was involved before the termination is disputed. The plaintiff asserted that the termination was ineffective. The composition of a chamber orchestra without a horn or French horn is senseless and arbitrary because the horn is essential for numerous works of orchestral music – so the piece “Peter and the Wolf” can only be performed as “Peter without a Wolf”. As in the lower courts, the lawsuit was unsuccessful before the Second Senate of the Federal Labor Court. The orchestra was downsized for understandable economic reasons. The Senate did not have to judge whether it was correct – measured by musical standards. In any case, it was not abusive and was not aimed at forcing individual, perhaps unwelcome, musicians out of their employment relationships. According to the collective agreement, a failure to involve the orchestra board does not render the termination ineffective.

Federal Labor Court, judgment of January 27, 2011 – 2 AZR 9/10 – Lower court: Thuringian State Labor Court, judgment of August 25, 2009 – 1 Sa 1/09 –

§ 2

Geschlechtsspezifische Benachteiligung wegen Schwangerschaft bei einer Stellenbesetzung

If a pregnant employee applies for a position and the employer who is aware of the pregnancy fills this position with a man, the employee has credibly demonstrated gender-specific discrimination if she presents other facts in addition to the pregnancy that indicate discrimination because of her suggest gender. There are no strict requirements for this further statement of facts. The plaintiff was employed by the defendant in the “International Marketing” department, which was headed by “Vice President” E., as one of three department heads. In September 2005 the position of E. became vacant. The defendant occupied this with a man and not with the plaintiff, who was pregnant at the time. She is seeking compensation for discrimination based on her gender. She didn’t get the job because of her pregnancy. When this decision was announced, she was asked about her pregnancy. The defendant claims that there are objective reasons for the selection made. The Labour Court has upheld the complaint. The state labor court initially rejected them. The Eighth Senate of the Federal Labor Court overturned the decision of the State Labor Court and referred the matter back to it. He had assumed that the plaintiff had presented facts that could suggest that she was at a gender-specific disadvantage in accordance with Section 611a Paragraph 1 of the German Civil Code (valid until August 17, 2006). In making its new decision, the State Labor Court, after taking evidence, assumed that the other facts presented by the plaintiff did not give rise to a presumption of discrimination due to her gender in the promotion decision. It again dismissed the lawsuit. In response to the plaintiff’s appeal, the Eighth Senate of the Federal Labor Court again overturned the decision of the State Labor Court and referred the matter back to the State Labor Court for a new hearing and decision because the State Labor Court made legal errors in determining the facts and in denying the presumption that the plaintiff was disadvantaged .

Federal Labor Court, judgment of January 27, 2011 – 8 AZR 483/09 -Previous instance: Berlin-Brandenburg State Labor Court, judgment of February 12, 2009 – 2 Sa 2070/08 –

§ 3

Schutz behinderter, aber nicht schwerbehinderter Menschen

After the General Equal Treatment Act (AGG) came into force on August 18, 2006, only those who fall within the scope of this law can rely on the protective regulations for severely disabled people according to the Social Security Code (SGB IX). These are severely disabled people with a degree of disability (GdB) of at least 50 or people who have been given equal status through a formal procedure. Anyone who does not belong to this group of people can, from August 2006, rely on the AGG to ward off discrimination due to disability. For the plaintiff, who, among other things, has completed training as a health clerk, a GdB of 40 has been determined. Her request for equality with severely disabled people had not been granted. The plaintiff applied to the defendant for the position of secretary to the chief physician and expressly referred to the GdB of 40 that she had. The defendant filled the position with another applicant without observing the provisions of SGB IX for the protection of severely disabled people or inviting the plaintiff to an interview. The plaintiff sees herself as disadvantaged as a disabled person and demands compensation from the defendant. Although she does not have a GdB of 50 and has not been treated equally, the latter has been guaranteed to her in case of need. The defendant violated SGB IX several times when filling the position, which leads to the assumption that her disability played a role in the plaintiff’s rejection. The defendant was unable to refute this assumption. The lawsuit was unsuccessful in all three instances. The defendant did not have to treat the plaintiff in accordance with the provisions of SGB IX because the plaintiff does not meet the personal requirements for this. It does not fall within the scope of the protective regulations of SGB IX. Therefore, the plaintiff cannot rely on other violations of the provisions of SGB IX. To do this, she would also have to be severely disabled or on an equal footing with severely disabled people. However, since August 2006, all disabled people have been protected by the AGG. However, the plaintiff referred exclusively to the violation of the provisions of SGB IX and did not present any facts that would give rise to the presumption of discrimination within the meaning of the AGG. After the Council Framework Directive 2000/78/EC of November 27, 2000 was implemented into German law with the AGG, the corresponding application of the rules of SGB IX to people who are not severely disabled is no longer an option.

Federal Labor Court, judgment of January 27, 2011 – 8 AZR 580/09 – lower instance: Berlin-Brandenburg State Labor Court, judgment of June 2, 2009 – 3 Sa 499/09

§ 4

Fortsetzungsverlangen gegenüber dem Betriebserwerber

An employee who demands the continuation of his employment relationship from a business purchaser because this is his new employer as a result of the transfer of the business must observe the deadlines that he would have to adhere to in order to object to the transfer of his employment relationship. The plaintiff had been employed at V GmbH in Magdeburg for almost ten years. V GmbH carried out “small package production” in a printing center belonging to the defendant, where the plaintiff was employed as a worker. The defendant terminated the contracts with V GmbH on March 31, 2007 and took over small package production in its printing center “on its own” from April 1, 2007. From this point on, the defendant used employees from a temporary employment agency to produce small packages; Employees remaining at V GmbH were no longer allowed access to the printing center. After the exemption, V GmbH terminated the employment relationship with the plaintiff on July 31, 2007 in due time. In contrast, the plaintiff filed an action for protection against dismissal three weeks later and asserted against the defendant that due to a transfer of operations on April 1, 2007, her employment relationship was transferred to the defendant at that time and continued by the defendant. The state labor court granted the plaintiff’s request for a continuation. The defendant’s appeal was unsuccessful. Since part of the business was rightly transferred to the defendant, the defendant must continue the employment relationship with the plaintiff that was transferred to it. The plaintiff’s corresponding application was neither time-limited nor forfeited. The seller or purchaser of a business must inform the affected employees of a business transfer, Section 613a Paragraph 5 BGB. If such information is not provided at all, as is the case here, neither the one-month period under Section 613a BGB Paragraph 6 for objecting to the transfer of the employment relationship begins to run, nor does a period within which the claim for continuation of the employment relationship be directed against the business purchaser must become. However, the corresponding declarations may have been forfeited under certain circumstances, although no evidence of this was presented in the present case.

Federal Labor Court, judgment of January 27, 2011 – 8 AZR 326/09 – Lower court: State Labor Court of Saxony-Anhalt, judgment of January 20, 2009 – 8 Sa 146/08 –

§ 5

Keine Anrechnung der Elternzeit auf die Stufenlaufzeit im Entgeltsystem des TVöD

The remuneration according to the collective agreement for the public service (TVöD) depends on the pay group in which the employee is classified. Within the pay group, the amount of remuneration is determined according to the level to which the employee is assigned. Promotion to the next higher level requires a period of uninterrupted activity in the same pay group as specified in Section 16 Paragraph 3 TVöD (VKA). According to Section 17 Paragraph 3 Sentence 1 TVöD, among other things: the protection periods according to the Maternity Protection Act (MuSchG) are equivalent to uninterrupted activity. Parental leave, on the other hand, is not counted towards the level term up to a duration of five years in accordance with Section 17 Paragraph 3 Sentence 2 TVöD; for a longer period, a downgrade by one level generally occurs in accordance with Section 17 Paragraph 3 Sentence 3 TVöD. The inhibition of the phased term of up to a period of five years by taking parental leave is compatible with European Union law and the Basic Law and in particular does not lead to gender discrimination. The plaintiff was in the costume department of the defendant from 2003 to 2009 He worked in the theater run by the city and did tailoring work. She took parental leave from April 28, 2005 to February 29, 2008. During this parental leave, the TVöD came into force on October 1, 2005. The plaintiff was grouped into pay group 5 in accordance with the collective agreement and assigned to level 2 in this pay group. The defendant did not count the parental leave time towards the phased term. The plaintiff is of the opinion that she is being discriminated against because of her gender and is seeking remuneration according to the next higher level 3 of her pay group. This would result in a gross monthly remuneration of around EUR 100.00 higher. As in the previous instances, the lawsuit was unsuccessful before the Sixth Senate of the Federal Labor Court. The plaintiff is neither directly nor indirectly discriminated against because of her gender due to the fact that parental leave is not counted towards the TVöD phased term. During parental leave, the employment relationship is suspended and the main mutual duties are suspended. No professional experience is gained during this time. The step up in the TVöD remuneration system is intended to reward the improvement in work performance that occurs through greater experience. The TVöD is therefore based on an objective criterion that has no connection to discrimination based on gender.

Federal Labor Court, judgment of January 27, 2011 – 6 AZR 526/09 – Lower court: LAG Baden-Württemberg, judgment of June 17, 2009 – 12 Sa 8/09 –

§ 6

Betriebliche Altersversorgung – Nichtberücksichtigung von Zeiten eines früheren Arbeitsverhältnisses

Deutsche Lufthansa AG is not obliged to take into account the time of a flight attendant’s previous employment relationship in the fictitious retroactive calculation of the so-called Lufthansa company pension in accordance with Section 2 of the collective agreement on the standardization of company pension schemes (TV Unification) in conjunction with. the collective agreement Lufthansa company pension for cabin crew (TV company pension) must be taken into account. Deutsche Lufthansa AG was a participant in the Federal and State Pension Fund (VBL) until the end of 1994. The employees who had been insured with the VBL up to this point received so-called VBL-equivalent care regulated by a collective agreement. For employees hired after this, the TV company pension provides for a pension plan based on pension components (Lufthansa company pension). On January 1, 2002, TV standardization came into force. According to § 2 TV standardization, those insured with the same VBL are treated in accordance with the additional tariff provisions as if they had received a promise of benefits according to the TV company pension due to their employment relationship since the beginning of the VBL-equal insurance obligation (so-called retroactive introduction of Lufthansa – company pension). In addition, according to Section 3 TV Unification, the non-forfeitable entitlement from the VBL-equivalent pension acquired by December 31, 2001, which also includes periods of service from previous employment relationships, is determined (so-called starting module). Pension modules will be purchased for the period thereafter. This results in the so-called guaranteed pension. In the event of a pension, the TV standardization provides for a comparative calculation of the benefits according to the TV company pension on the one hand and the guaranteed pension on the other. The employee is entitled to the higher pension. The plaintiff joined the defendant Lufthansa AG as a flight attendant on August 22, 1978. She left her employment on June 30, 1987 after the birth of her child. Since February 1, 1992, she has been employed again as a flight attendant for the defendant. This only takes into account the plaintiff’s period of employment from 1978 to 1987 when calculating the starting module, but not when calculating the fictitious retroactive calculation of the Lufthansa company pension. The lower courts dismissed the lawsuit seeking to take previous employment into account when calculating the Lufthansa company pension. The plaintiff’s appeal was unsuccessful before the Third Senate of the Federal Labor Court. § 2 TV standardization in conjunction with According to the TV company pension, the period of a previous employment relationship is not to be taken into account. This does not constitute indirect discrimination based on gender. The collective bargaining parties were entitled to the regulation made due to their collective bargaining autonomy.

Federal Labor Court, judgment of January 19, 2011 – 3 AZR 29/09 – Lower court: Hessian State Labor Court, judgment of September 24, 2008 – 8 Sa 1370/07

§ 7

Rückzahlung von Weiterbildungskosten bei Beendigung des Arbeitsverhältnisses vor Abschluss der Ausbildung – Inhaltskontrolle

A clause in general terms and conditions, according to which the employee must repay the costs of further training covered by the employer if he leaves the employment relationship at his own request before the further training has been completed, regularly withstands a content check in accordance with Section 307 Paragraph 1 of the German Civil Code (BGB), provided that the further training is successful is of monetary benefit to the employee. This also applies if the further training does not take place continuously, but rather in several training periods separated from one another, provided that the timing of the individual training periods corresponds to the requirements of the further training institution and the contractual agreement does not give the employer the opportunity to participate solely according to his interests to determine the respective training phases. It remains unclear whether and to what extent the length of the interruptions between the training phases that can be foreseen when the repayment agreement is concluded is subject to an appropriateness check. The defendant had been employed as a bank clerk at the plaintiff savings bank special purpose association since February 2002. In June 2006, the parties concluded a course agreement regarding the defendant’s participation in a savings bank business administration course run by the Bavarian Savings Banks and Giro Association. Thereafter, the plaintiff must pay the course and examination fees and release the defendant to participate in the course while continuing to pay the remuneration; The defendant must reimburse the plaintiff for these benefits if he leaves the employment relationship at his own request before completing the training. The defendant completed two training periods of approximately five weeks each over a period of approximately eight months. He then terminated his employment and no longer took part in the third and final training phase, which was later. The state labor court essentially upheld the lawsuit seeking reimbursement of the training costs. The defendant’s appeal before the Third Senate of the Federal Labor Court was unsuccessful. The plaintiff is entitled to reimbursement of the training costs. The repayment clause is effective. By being bound to the employment relationship until the completion of the savings bank business administration course specified by the Savings Banks and Giro Association, the defendant is not unreasonably disadvantaged in the sense of. § 307 Paragraph 1 BGB.

Federal Labor Court, judgment of January 19, 2011 – 3 AZR 621/08 – Lower court: Munich Regional Labor Court, judgment of May 8, 2008 – 2 Sa 9/08 –

§ 8

ERA-TV und Mitbestimmung des Betriebsrats bei Ein- und Umgruppierungen

The wage framework collective agreement for employees in the metal and electrical industry in Baden-Württemberg of September 16, 2003 (ERA-TV) did not eliminate the works council’s statutory right to participate in regrouping and regrouping. According to Section 99 Paragraph 1 Sentence 1 BetrVG In companies with generally more than 20 employees entitled to vote, the employer must inform the works council before any regrouping or regrouping and obtain its consent. The statutory right to participation ensures that the works council has a legal say in the employer’s assignment of individual employees to a specific pay group in a remuneration system applicable in the company. According to § 9.1 ERA-TV, the employee is entitled to the basic pay of the pay group that corresponds to the classification of the work task performed. Assessment and classification of the work task is carried out according to a procedure set out in ERA-TV. The works council has no right of co-determination. According to § 9.2 ERA-TV, the employer informs the employee and the works council in writing of the pay group resulting from the classification of the work task. The required assignment of the employee to an ERA-TV pay group constitutes the classification or regrouping subject to co-determination in accordance with Section 99 Paragraph 1 Sentence 1 BetrVG. This assignment, which must be made by the employer, is not eliminated because the classification of the work task is bindingly determined in the collectively regulated procedure. In particular, it remains to be checked whether the pay group communicated corresponds to the assessed and classified work task and whether the employee actually carries out the work task. The works council must be involved in this. His right to co-determination is not suspended by the complaint procedure regulated in the ERA-TV. Unlike the previous courts, the Seventh Senate therefore approved a works council’s application to determine its right to participate in the classification and regrouping of employees in the ERA-TV.

Federal Labor Court, decision of January 12, 2011 – 7 ABR 34/09 – Lower court: LAG Baden-Württemberg, decision of January 16, 2009 – 5 TaBV 2/08 –

§ 9

Unterweisung zum Arbeitsschutz

According to Section 87 Paragraph 1 No. 7 BetrVG, the works council has a say in company regulations regarding health protection. This also includes the obligation imposed on the employer by Section 12 of the ArbSchG to instruct employees about safety and health protection at work. If the operating parties do not agree on the type and content of the instruction, the conciliation board must regulate this. In doing so, it must take into account the findings of a risk analysis (§ 5 ArbSchG) and align the specific workplace or task-related instruction accordingly. It cannot limit itself to establishing general provisions regarding instruction on hazards in the workplace. An arbitration board set up to deal with the subject of “implementation of occupational safety requirements” had made a partial decision on general regulations for instructing employees about the stresses at work, the correct use of work equipment and the design of work organization. A risk assessment was not available at the time the resolution was passed. The employer objected to this and challenged the partial award. The state labor court found the partial award to be invalid. The works council’s legal complaint against this was unsuccessful. The conciliation board has not fulfilled its regulatory mandate. Your sentence is incomplete. There was a lack of concrete instructions and explanations that were specifically tailored to the workplace or the employee’s area of responsibility.

Federal Labor Court, decision of January 11, 2011 – 1 ABR 104/09 – Lower court: Berlin-Brandenburg State Labor Court, decision of February 19, 2009 – 1 TaBV 1871/08 –