Kündigungsschutzrecht (German Edition)

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This judgment could have far-reaching consequences. This will be impeded by the new judgment, since the BAG has replaced the unequivocal legal term "employee" with the diffuse term regular "personnel strength. The latter must now be considered part of the minimum number of "employees.

In view of the broad interpretation of the term "personnel strength," however, it must be asked whether commercial agents, software developers who have worked in the business for longer terms, and other freelancers will also be regarded as "personnel" in the future. The long-established entrepreneurial practice of keeping the number of personnel below the limit prescribed for protection against dismissal is being destroyed by this ruling.

Thus, the judgment is definitely objectionable. The BAG explained that they were not to be included when determining the number of works council members to be elected, according to the German Works Constitution Act Betriebsverfassungsgesetz ; BetrVG , or the number of works council members to be released from work Sections 9 and 38 Para.

The regional labor courts did not include temporary workers within the scope of Section 23 of the KSchG, either. Apparently, the BAG sees things di f ferent l y now. Nevertheless, the judgment is in line with a tendency observable in legislation and case law: In , the BetrVG was modified to the effect that temporary workers are entitled to vote for the works council in the hiring company if they have been employed within the company for more than three months Section 7 S.

Amended in , Section 1 Para.

Kündigungsschutzrecht | German to English | Law: Contract(s)

One consequence of the current judgment is that termination of a small business's "own" employees now requires a reason for the termination if the temporary workers cause the headcount of 10 to be exceeded. It remains to be seen whether "former" small businesses, fearing actions against unlawful dismissal, will refrain from providing notice of termination.

However, the impact of the judgment can go even further: Pursuant to Section 8 Para. The ruling may also affect the statutes holding that companies with more than 20 employees must reserve 5 percent of their jobs for the severely disabled and that those with more than 21 employees must inform the employment agency in advance if they intend to dismiss more than five of them.

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