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Special protection against dismissal – I‘ve seen it all! Or haven’t I?

Author
Drenckhahn Cornelia
Dr Cornelia Drenckhahn

Senior Associate

Hamburg

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16 November 2022

Germany is famous and notorious for its far-reaching protection against dismissal. While it is probably well known that every dismissal after six months of employment requires a reason for termination, no "cherry picking" but social selection according to fixed criteria has to take place and (temporarily) no ordinary dismissal of works councils, severely disabled persons, pregnant women or employees on maternity leave, parental leave or nursing leave can be issued or, at least in very limited cases, only with the approval of the authorities, there are many other traps lurking in which the employer is simply not aware of the employee's special protection against dismissal.

Which special protection against dismissal is common?

There is a broad diversity of reason for special protection against dismissal. Those mentioned above are well-known or can at least be found quickly in the conventional collections of "labor laws":

  • Representatives under works constitution law enjoy protection against dismissal, in each case for a different period of time. This includes the members of the works council, the youth and trainee representatives, the ship’s committee (Bordvertretung), the sea works council as well as their counterparts in the public sector and their substitute members (for the duration of the member's absence from the respective body, regardless of whether the substitute member actually performs tasks for the body during the substitution period). Furthermore, the members of the election committee, the election candidates and (limited in time and number) the employees who have invited to a works, election or crew meeting in accordance with Sec. 15 German Dismissal Protection Act (Kündigungsschutzgesetz "KSchG ") are protected against ordinary dismissal. The same applies to the representatives of severely disabled persons (Sec. 179 para. 3 sentence 1 Social Code IX (SGB IX)), the members of a European Works Council employed in Germany (Sec. 40 para. 1 European Works Council Act (EBRG)), as well as to the members of the so-called special negotiating committee and to the employee representatives as part of a procedure for information and consultation (Sec. 40 para. 2 European Works Council Act) as well as the members of the SE Works Council and its special negotiating body (Sec. 42 SE Participation Act (SEBG)). The law does not provide any special protection against dismissal for members of the speakers' committee, the economic committee and for employee representatives on the supervisory board;
  • Severely disabled persons (and those with equal rights) are equally protected against dismissal in accordance with Sec. 168 Social Code IX;
  • Pregnant women or employees on maternity leave and thereafter also enjoy protection against dismissal under Sec. 17 Maternity Protection Act (MuSchG);
  • Protection against dismissal during parental or care leave is granted under Sec. 18 Federal Parental Benefit and Parental Leave Act (BEEG) and in Sec. 5 Care Leave Act (PflegeZG) for (family) care leave, usually from the time the leave is requested and now possibly also beyond this, when the "package for more partnership" announced by the German government comes into effect.

In the context of a restructuring, it is also known that any special protection against dismissal under collective bargaining agreements has to be considered. This is because many collective agreements provide for special protection against dismissal for employees above a certain age and/or a certain length of service. Just as common in collective bargaining agreements or works agreements are clauses securing sites for the future that exclude the ordinary termination for operational reasons of employees for a certain period of time. 

However, the following circumstances are not always taken into consideration:

  • After the end of the probationary period the apprentice can only be dismissed by the employer for good cause in accordance with Sec. 22 para. 2 sentence 1 Vocational Training Act (BBiG). According to case law, this is only the case if the training objective is significantly jeopardized and the continuation of the apprenticeship is unreasonable.
  • If women or men undertake to perform voluntary military service, they receive the same status as (former, or, in the event of the determination of a case of tension or defense, current) conscripts, Sec. 58 f Soldiers Act (SG). This means that the employer must not terminate the employment relationship from the date the draft notice is delivered until the end of the military service (Secs. 2 para. 1, 16 para. 7 Workplace Protection Act (ArbPlSchG)). However, while Sec. 2 Workplace Protection Act also applies accordingly to those performing civilian service (Sec. 78 para. 1 no. 1 Civilian Service Act (ZDG)), it does not apply to participants in the Federal Volunteer Service; this may come as a surprise, but it is probably due to the fact that the Federal Volunteer Service usually takes place immediately after finishing school and therefore, in the opinion of the legislator, there is no need for job protection.

What other special protection against dismissal does the law provide for?

Some of the facts that are relatively unknown to those who do not work in the HR department can usually also be found in the relevant labor law collections, but not necessarily in the index under "special protection against dismissal". These include, in particular, the special protection against dismissal for special company representatives:

  • The data protection officer appointed due to statutory obligation enjoys special protection against dismissal in accordance with Secs. 6 para. 4 sentence 2, 38 para. 2 Federal Data Protection Act (BDSG). The employer must not terminate the employment with due notice, but only extraordinarily without notice if there is an important reason. Pursuant to Sec. 6 para. 4 sentence 3 Federal Data Protection Act this protection against termination shall continue to apply for one year after the end of the data protection officer's term of office. If the employment relationship on which the appointment is based ceases to exist, this constitutes a good cause pursuant to Sec. 6 para. 4 sentence 1 Federal Data Protection Act, which then also entitles the employer to recall the data protection officer; otherwise, recall is also only permissible by corresponding application of Sec. 626 German Civil Code (BGB). This very far-reaching protection of the company data protection officer against discrimination and revocation of appointment, as well as against ordinary dismissal under the Federal Data Protection Act, is also compatible with European Union law and national constitutional law (in particular Article 12 of the German Basic Law) as the Federal Labor Court (BAG) recently confirmed following a preliminary ruling by the Court of Justice of the European Union (Federal Labour Court ruling dated 25 August 2022 - 2 AZR 225/20, NZA 2022, 1457) and also applies, like all special termination protection provisions, during the probationary period and the waiting period pursuant to Sec. 1 para. 1 German Dismissal Protection Act. The Federal Labour Court emphasized that the special protection against dismissal pursuant to Sec. 38 para. 1, 2 in conjunction with Sec. 6 para. 4 Federal Data Protection Act is not disproportionate, in particular, because the non-public employer has the free choice when appointing a data protection officer for the first time whether to appoint an internal data protection officer, who is then subject to the special protection against dismissal, or an external data protection officer.
  • The money laundering officer appointed due to statutory obligation under Sec. 7 para. 1 Money Laundering Act (GWG) or due to an order issued by the supervisory authority under Sec. 7 para. 3 Money Laundering Act, as well as his deputy, also enjoy special protection against dismissal. Pursuant to Sec. 7 para. 7 sentence 2 Money Laundering Act, the termination of their employment (during the term of their appointment) is not permitted unless facts exist that entitle the responsible body to terminate their employment for good cause without notice. The money laundering officer is protected from dismissal due to suspicious activity reports or charges against the employer by the fact that he and his deputy may not suffer any disadvantage in their employment relationship due to the performance of their duties pursuant to Sec. 7 para. 7 sentence 1 Money Laundering Act. In the case of the money laundering officer, however, good causes for termination, in addition to the usual typical situations, may include the failure to report suspicions for the purpose of concealing money laundering or terrorist financing or any other significant abuse of the position in this context. The protection against dismissal continues to apply even for one year after the recall as money laundering officer or deputy.
  • Operators of plants subject to licensing under the Federal Immission Control Act (BImSchG) are required by law to appoint one or more company officers for immission control (Immission Control Officers) if this is required under Sec. 53 Federal Immission Control Act. If an employee is appointed as an Immission Control Officer due to statutory requirements, he or she cannot be dismissed ordinarily as of his or her appointment (Sec. 58 para. 2 sentence 1 Federal Immission Control Act). The same applies to the hazardous incident officer pursuant to Sec. 58 d Federal Immission Control Act, the waste officer pursuant to Sec. 59 Closed Substance Cycle Waste Management Act (KrWG) and the water protection officer pursuant to Sec. 66 Federal Water Act (WHG), for whose protection reference is made in each case to Sec. 58 Federal Immission Control Act; thus, this also includes the continued ordinary protection against dismissal for one year from the date of termination of the appointment under Sec. 58 para. 2 sentence 2 Federal Immission Control Act. In the past year, the group of company representatives for these purposes included more than 11,500 employees throughout Germany.
  • In some cases, employees who hold a political mandate or work in certain honorary positions are also subject to special protection against dismissal:

For example, Sec. 2 para. 3 Members of the Bundestag Act (AbgG) prohibits the ordinary dismissal of members of the Bundestag and candidates for the Bundestag. The protection against dismissal begins with the nomination of the candidate by the responsible body of the party or with the submission of the election proposal and continues to apply for one year after the end of the mandate. Termination for good cause remains permissible. 

Article 48 para. 2 sentence 2 of the German Constitution and Sec. 2 para. 3 sentence 1 Members of the Bundestag Act also prohibit termination of the employment relationship because of the acceptance or exercise of the function of a member of the Bundestag. The same applies to members of the European Parliament (Sec. 3 para. 3 Members of the European Parliament Act (EuAbgG)). In some cases (e.g. in Rhineland-Palatinate and Hesse), state law also provides special protection against dismissal for members of the state parliament (Art. 96 of the state constitution, Sec. 2 para. 3 Members of Parliament Act Rhineland-Palatinate (AbgG RhPf) and Sec. 2 para. 2 Members of Parliament Act Hesse (HessAbgG)) and members of the county council (Sec. 12 a para. 2 and 4 District regulations Rhineland-Palatinate (LKrO RhPf) and Sec. 28 a para. 2 District regulations Hesse (HKO)) as well as at the municipal level, for example for members of municipal councils, municipal representatives, honorary mayors, aldermen, members of local advisory councils, etc. (Secs. 18a para. 2, 4 Municipal Ordinance Rhineland-Palatinate (GemO RhPf) or Secs. 35a para . 2, 39 para. 3 sentence 3, 39a para. 2 and others Municipal Ordinance Hesse (HGO)).

On the other hand, the special protection against dismissal for honorary firefighters planned in Hesse in 2016 was not introduced. For them, as for their colleagues in Rhineland-Palatinate, there is only a prohibition of discrimination in the employment relationship because of their activity; they may not be dismissed, terminated or transferred to another municipality for this reason (Sec. 11 para. 5 Hesse Fire and Disaster Protection Act (HBKG) and Sec. 13 para. 2 Rhineland-Palatinate Fire and Disaster Protection Act (LBKG)).

Such special prohibitions of discrimination apply for most of the above-mentioned groups of employees who have special protection against dismissal due to the exercise of an (honorary) office.  The same also applies to honorary judges pursuant to Sec. 45 para. 1a sentence 3 German Judges Act (DRiG); Brandenburg, for example, has made use of the reservation of further regulation for the protection of this group of employees at the level of state law. Pursuant to Art. 110 para. 1 sentence 2 of the Constitution of the State of Brandenburg, honorary judges may only be dismissed during their term of office if facts exist that entitle the employer or principal to dismiss them without notice.

The above list, which is by no means exhaustive, shows that, particularly in the case of political or honorary activities of employees against whom a termination is proposed, it should always be carefully examined whether they are subject to special protection.

Special protection against termination may also result from the employment contract

Finally, the employer's right of termination may also be limited by contractual agreement with the employee. Thus, the exclusion of ordinary termination by the employer in the employment contract is effective insofar as the employer retains the right to extraordinary termination. However, an agreement in the employment contract which makes the effectiveness of the termination dependent on the consent of the works council is invalid (Federal Labour Court decision dated 23 April 2009 - 6 AZR 263/08, NZA 2009, 915), because only an agreement of the employer and the works council could regulate such a reservation of consent, not the parties to the employment contract.

Such contractual restrictions can be found, for example, in the case of compliance officers, who do not enjoy any special legal protection against dismissal. In particular for investment service companies, an appointment for a period of at least 24 months is recommended in order to maintain the independence of the compliance officer. In order to strengthen the compliance officer, it is also suggested to agree on a 12-month notice period by the employer (see also BaFin Circular 4/2010 (WA) of June 7, 2010 on minimum requirements for the compliance function for securities services companies (MaComp), part BT 1.3.3.4, item 4). In practice, a contractually granted special protection against termination is often agreed, as otherwise it is not possible to recruit a sufficiently qualified person for this special task in the tension between the obligation to provide information and the obligation to show loyalty.

Conclusion

In order to avoid mistakes in the thicket of German protection against dismissal statute, employers are well advised to carefully check in each individual case whether there are other restrictions in addition to the well-known restrictions on dismissal, for example due to honorary or political activities. In this context, it is advisable to record activities that already come into consideration in the current employment relationship.

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