Monthly Dose Employment Law: 06/2024

1. No double vacation entitlements in case of dual employment (BAG judgement dated 5 December 2023, 9 AZR 230/22)

In its decision of 5 December 2023, the Federal Labour Court (Bundesarbeitsgericht, BAG) had the opportunity to further develop its vacation case law in so-called non-genuine dual employments. The lawsuit was based on the legal question of whether the acquisition of double vacation entitlements exists in a non-genuine dual employment, i.e. in an - ineffectively - terminated employment and in a new employment existing in parallel. The BAG clarified that in the case of such non-genuine dual employment, vacation entitlements must be offset on the basis of a single calendar year. 

The plaintiff employee had been employed by the defendant employer since 2014 and had an annual vacation entitlement of 30 working days. The defendant terminated the plaintiff's employment on 23 December 2019 without notice. In the legal dispute regarding the termination, the labour court issued a final judgement on 9 September 2020 that the termination was legally invalid and that the employment between the parties did not end on 23 December 2019. The employment only ended subsequently due to a further extraordinary termination by the defendant on 7 May 2021. During the termination dispute, the plaintiff took up a parallel employment with another employer, in which the plaintiff was only entitled to an annual vacation entitlement of 25 working days. In the period from 1 January 2020 until the termination of the employment with the defendant on 7 May 2021, the plaintiff had been granted leave of 10 working days in the parallel employment relationship. 

The parties' employment contract contained a reference to the German Federal Leave Act (Bundesurlaubsgesetz, BUrlG) with regard to the provisions concerning leave. In the opinion of the plaintiff, this resulted in a statutory vacation entitlement of 20 working days and a contractual vacation entitlement of 10 working days for a 5-day week. The parties disputed the question of whether the plaintiff is entitled to vacation compensation totalling 7 working days due to contractual (additional) vacation entitlements for the years 2020 (5 days) and 2021 (2 days). The defendant was of the opinion that the plaintiff must be fully credited with the vacation that the new employer had granted her in the meantime.

The BAG partially upheld the claim. The defendant was not obliged to settle the contractual (additional) vacation entitlement for 2020; the plaintiff had to have the vacation days granted from the parallel employment relationship offset in full. The BAG confirmed that employees in a dual employment generally acquire full vacation entitlements in the respective employment relationships, even if the contractual obligations cannot be fulfilled simultaneously, as the statutory vacation entitlement merely presupposes the existence of the employment relationship and is not linked to the performance of work. With reference to Section 11 No. 1 of the German Dismissal Protection Act (Kündigungsschutzgesetz, KSchG) and Section 615 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the doubling of vacation entitlements is to be avoided by analogous application of these offsetting provisions if and since the employee cannot fulfil the work obligations cumulatively. It can be inferred from the legal concept of the standards that the default of acceptance should not result in any advantages or disadvantages for the employee.

However, the offsetting of vacation entitlements presupposes that there is a causal connection between the employee being released from the obligation to fulfil his work duties in the former employment relationship as a result of the termination - purely in fact - and the acquisition of vacation entitlements in the new employment relationship. In the present case, the plaintiff was only able to fulfil her work for the current employer because she was released from the obligation to work for the former employer. 

In the second instance judgement, the LAG had applied the crediting across calendar years. The BAG objected to this and clarified that the crediting must be carried out on a period-related basis (only) for the individual calendar year. This follows in particular to ensure the purpose of the vacation. 

If the parties to the employment contract wish to agree that the contractual additional leave is to be exempt from the offsetting of claims from an employment relationship established at a later date, there must be clear indications of this. If there are no such indications, it must be assumed in favour of the employer that not only the statutory minimum leave but also the contractual additional leave is to be taken into account.

The provision of Section 6 BUrlG on the exclusion of double entitlements, according to which employees cannot demand vacation entitlements already granted by their former employer from their current employer again, does not apply to the present constellation of a double employment relationship. The regulation relates to two separate consecutive employment relationships. 

A direct application of the offsetting provisions in Section 11 no. 1 KSchG and Section 615 sentence 2 BGB is not directly applicable to dual employment relationships. These would require a claim based on default of acceptance pursuant to Section 615 sentence 1 BGB. However, the claim for paid leave from work against an employer who has declared an invalid dismissal is not based on Section 615 sentence 1 BGB, but follows directly from the BUrlG. In this respect, the law does not contain any explicit provisions for the situation here. 

With regard to vacation entitlements for the calendar year 2021, the BAG referred the case back to the second court instance. The latter must now first examine the extent to which the current employer has paid the leave granted to the plaintiff up to the termination of the employment relationship in order to fulfil the leave entitlement from 2021. 

Consequences for practice

Employees must have the days of leave granted by another employer as part of a dual employment credited to them - both the statutory minimum leave and the contractually agreed additional leave. Only if offsetting has been excluded in the employment contract can there be claims for vacation compensation in excess of the vacation days granted by the new employer.

2. Submission of application documents to inform the works council in the event of recruitment is sufficient in digital form (BAG decision of 13 December 2023, 1 ABR 28/22)

In its decision of 13 December 2023 (1 ABR 28/22), the BAG had the opportunity to deal with the question of whether employers properly comply with the duty to inform in accordance with Section 99 of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) if the applicant documents are submitted to the works council in digitalised form and not in paper form. 

In the case underlying the decision, the applicant employer operates a beverage store in which a works council has been formed. The employer uses software ("Recruiting") for the application process, in which all applicant documents - including those submitted by post - are recorded digitally. The works council members have the right to view all applicant data and their submitted documents via the laptops provided by the employer for works council activities. 

In spring 2021, the employer advertised a position for which 33 applications were received, which were stored in the "Recruiting" programme. On 8 June 2021, the employer asked the works council to approve the recruitment of an employee to start on 1 October 2021. The works council refused to give the approval on the grounds that it had not been properly informed, as the documents should have been made available to it in paper form. 

The employer sought the replacement of the works council's consent to the hiring of an employee required pursuant to Section 99 (1) sentence 1 BetrVG.

The BAG replaced the consent of the works council pursuant to Section 99 (4) BetrVG. The works council had wrongly refused its consent to the recruitment. The employer had duly informed the works council within the meaning of Section 99 (1) sentence 1 BetrVG, so that the works council could have checked on the basis of the digitally provided documents whether there was a reason for refusing consent pursuant to Section 99 (2) BetrVG. The employer had provided the works council with necessary information on 8 June 2021 and had also fulfilled its obligation to provide the works council with the application documents by granting access to the "recruiting" software. 

Even if the wording in Section 99 (1) BetrVG with "submission of the necessary documents" corresponded to the reality of physical hiring at the time the standard was enacted in the calendar year 1972, the purpose of the provision was to provide the works council with all the information necessary for its decision. The digitised provision of the right to inspect and read all application documents fulfilled this requirement. The works council members were able to access the applicants' cover letters, CVs, references and certificates using the laptops provided to them by the employer for works council activities. The works council was not entitled to receive the documents in paper form. Even if the documents are made available digitally, it is guaranteed that the works council can form an impression of the applicants. The works council could take notes or screenshots. In this respect, it has the same level of information as the employer.

Consequences for practice

The - clarifying - decision of the BAG is pleasing in practice. It is in line with what is now general practice and creates legal certainty for the digital administration of the recruitment process. Employers can make the relevant application documents available to the works council in digital form and thus enable the works council to retrieve the application documents. It is also crucial that the documents are complete so that the works council can gain a comprehensive picture of the applicants.

3. Claim to deletion of a warning after termination of the apprentice relationship and claim for damages due to unfulfilled claim to information (LAG Baden-Württemberg judgement of 28 July 2023, 9 Sa 73/21)

In its judgement of 28 July 2023 (9 Sa 73/21), the LAG Baden-Württemberg had the opportunity to answer the legal question of whether the plaintiff trainee is entitled to have a warning letter deleted from his personnel file after termination of the apprentice relationship.

The plaintiff completed an apprenticeship with the defendant, which operated several fitness studios, in the period from 1 September 20216 to 30 March 2020 as a sports and health trainer and as a sports and fitness merchant. On 5 March 2020, the defendant issued him with a warning regarding the apprentice relationship, which it based on the unauthorised storage of membership data of individual members of its fitness studios by the plaintiff on a private USB stick. The managing director of the defendant had taken the plaintiff's private USB stick, which was last found in one of the defendant's gyms. On 25 March 2020, the plaintiff requested information from the defendant about his personal data in accordance with Art. 15 of the General Data Protection Regulation (GDPR) and the transfer of his personnel file, setting a deadline of 3 April 2020 for the provision of information. The defendant did not provide the information, although it had already read the plaintiff's USB stick beforehand.

The plaintiff filed a lawsuit, arguing that the lack of information led to considerable uncertainty about the whereabouts of his data at the defendant and represented an impairment for him. Therefore, in addition to the cancellation of the warning, he also demanded compensation in accordance with Art. 82 (1) GDPR.

The Labour Court (Arbeitsgericht, ArbG) Villingen-Schwenningen dismissed the claim. In view of the termination of the apprentice relationship, there was no need to remove the warning from the personnel file. In addition, the claim for information pursuant to Art. 15 GDPR and the claim for damages for failure to provide information were unfounded. This was already apparent from the fact that the plaintiff had set the defendants too short a deadline (of nine days) for the provision of information. The plaintiff appealed against this decision.

The LAG Baden-Württemberg ruled in favour of the action. The plaintiff was, according to LAG Baden-Württemberg’s view, entitled to information about the processing of his personal data in accordance with Art. 15 GDPR. The defendant had breached this obligation by not providing the plaintiff with the information in a timely and complete manner. The plaintiff's detriment was understandable, as he could not know what data was still held by the defendant. The fact that the plaintiff himself may have copied data without authorisation does not alter the defendant's obligation to provide information. 

Setting a deadline that is "too short" is irrelevant, as the deadlines for providing information are regulated by law. If the person entitled to information sets a deadline that is too short, the one-month deadline pursuant to Art. 12 (3) GDPR applies.

The chamber based the plaintiff's claim for removal of the warning letter from the personnel file on Art. 17 GDPR. Warnings also contain personal data. The purpose of a warning is to warn the employee of a potential dismissal. This purpose is basically fulfilled with the termination of the apprentice relationship and therefore the warning is no longer necessary under Art. 17 GDPR and must be deleted upon request.

Consequences for the practice

The appeal lodged by the defendant against the judgement is pending before the BAG (8 AZR 215/23). From a formal legal perspective, employers should fulfil requests for information in individual cases - regardless of the deadline set by the employee - within the one-month statutory period in order to avoid claims for damages. In addition, it is generally recommended to delete warnings from the personnel file after termination of the employment relationship.

4. (No) Obligation of the employer to cover the costs of simultaneous translation for a works meeting (LAG Saxony, decision of 10 October 2023, 2 TaBVGa 2/23)

In its decision of 10 October 2023 (2 TaBVGa 2/23), the LAG Saxony had the opportunity to comment on the legal question of whether an employer must bear the costs of simultaneous translation for a works meeting. The LAG Saxony ruled that, although the costs of interpreters and the associated material costs were generally to be reimbursed by the employer, the costs of around EUR 31,000 for simultaneous translation into five languages, including technical equipment, at the works meeting in question were not to be borne by the employer.

Approximately 1,220 employees of different nationalities work in the logistics company of the employer involved, of which 640 employees were not native German speakers. Both the application process and instructions were always given in German. Notices with information on occupational safety etc. are sometimes posted in several languages. 

In May 2023, the works council decided to have future works council meetings simultaneously translated into the five most common foreign languages in order to make them understandable for everyone. This required a cost of EUR 31,000 per works meeting. The works council requested that the employer cover these costs, which the employer refused to do. 

The works council then asserted the assumption of these costs in labour court by way of interim legal protection.

The LAG Saxony did not grant the works council's request. There was no obligation for the employer to bear the costs, as the works council had not sufficiently explained why the measure was necessary and proportionate. The employer must bear the costs of the works council's work pursuant to Section 40 (1) BetrVG; this applies to material resources, information and communication technology pursuant to Section 40 (2) BetrVG. In principle, this could also include interpreter costs. The works council has a wide margin of judgement with regard to necessity. However, it follows from the requirement of cooperation in a spirit of trust under Section 2 (1) BetrVG that the employer only has to bear the costs that are necessary for the proper defence of interests. This does not depend solely on the subjective needs of the works council; it is necessary to weigh up the interests of the workforce in the proper fulfilment of the works council's duties against the legitimate interests of the employer. 

In particular, the principle of proportionality must be taken into account. It must always be examined on a case-by-case basis whether the costs are compatible with the size and performance of the company, taking into account the content and scope of the works meeting. It therefore depends on the importance of the intended information and discussions. It should also be considered whether there are more cost-effective alternatives. In the present proceedings, the works council had not sufficiently demonstrated that the items on the agenda were of such considerable importance that costs of EUR 31,000 were justified. 

The generalised assertion made by the works council that the works council meetings held exclusively in German in the past had led to uncertainty and unrest among the foreign employees was not sufficient. Furthermore, the restriction of the translation to the five most common foreign languages was in any case not a suitable means of ensuring the proportionality of the measure, as Section 75 BetrVG also obliges the works council to treat employees equally. Accordingly, it is disadvantageous for those employees who speak a native language that is not widely spoken in the company not to have it translated. Furthermore, the translation is also not necessary in order to promote the integration of foreign employees in the company in accordance with § 80 (1) no. 7 BetrVG. 

Consequences for practice

The decision sensitises the parties to the works council to carefully weigh up the relevant reasons for the assumption of relevant costs of works council work by the employer, taking into account the principle of proportionality under works constitution law.

5. "JobRad model" - obligation to pay the employee's leasing instalment in the event of illness (ArbG Aachen judgement of 31 August 2023, 8 Ca 2199/22)

In its judgement of 31 August 2023 (8 Ca 2199/22), the ArbG Aachen had to deal with the question of whether an employer is obliged to pay the leasing rate for a JobRad in the event of an employee's illness, which is borne by the employee by way of deferred compensation.

The parties were in dispute about the obligation to pay the leasing instalments for two JobRad bikes that were provided to the plaintiff employee for use by the defendant employer. The defendant was the lessee in the leasing agreements concluded with JobRad SE for this purpose.

According to the agreement between the plaintiff and the defendant, the plaintiff was obliged to pay the monthly leasing instalments for the JobRad bikes provided to him even during periods of employment without pay. The leasing instalments were deducted from the monthly gross salary by means of deferred compensation. 

The agreement specifically stated: "The employee hereby instructs the employer to order this vehicle from the following specialist dealer for the purpose of leasing: (...)" and "The employee shall, in corresponding amendment of the existing employment contract, convert a monthly instalment [...]from his entitlement to gross remuneration. The deferred compensation begins on the first day of the month following the transfer of the vehicle and ends at the end of the utilisation period. If the option to convert remuneration ceases during the term of the contract, the employee's obligation to pay the conversion instalment specified on p. 1 shall continue to apply, subject to the provisions in No. 3.2 et seq." [translation by authors] 

The plaintiff was unable to work from November 2021 and received sick pay (Krankengeld) in the period from January to May 2022. In a letter dated 6 December 2021, the defendant informed him that the leasing instalment was to be paid during the period of sick pay. The plaintiff did not make a payment to the defendant. The defendant then deducted the instalments incurred for the period from January to May 2022 from the plaintiff's remuneration in August 2022 after the plaintiff's return and after giving notice.

The plaintiff filed a lawsuit and argued that the defendant had no counterclaim for payment of the monthly leasing instalments and that the clause in the transfer of use agreement was non-transparent and would unreasonably disadvantage the plaintiff. 

The ArbG Aachen found that the plaintiff had to reimburse the employer for the monthly leasing instalments of the JobRäder on the basis of the obligation under the transfer of use agreement and that the defendant's set-off against the plaintiff's claim to remuneration from August 2022 was legally valid. An obligation to pay the leasing instalments also exists for periods of employment without remuneration. 

There was no unrestricted review of the content of the General Terms and Conditions (GTC) at hand (Section 307 (3) sentence 1 BGB). The licence agreement merely clarifies that the consideration for the use is to be provided for the entire term of the agreement. This is a provision directly relating to the consideration, which therefore does not deviate from statutory provisions within the meaning of Section 307 (3) sentence 1 BGB, but rather relates to the equivalence of performance and consideration. 

The ArbG Aachen also stated that even if the clause was treated as a controllable ancillary price agreement, the employee would not be entitled to a contractual penalty pursuant to Section 305 (1) sentence 1 BGB in conjunction with Section 307 (2) no. 1 BGB. Section 307 (2) no. 1 BGB and would therefore also stand up to the unrestricted review of content. It is not unfair to impose the economic burden on the plaintiff if the plaintiff continues to have the benefit of use. There is therefore no incompatibility with the essential basic ideas of the statutory provision, § 307 (2) no. 1 BGB. Furthermore, the wording in the transfer of use agreement makes it clear that the initiative comes from the employee and that the employee uses his employer as an intermediary for the delivery of a bicycle. It should be understood to mean that the possibility of use and thus also the obligation to provide consideration should be maintained even during a prolonged illness. In this respect, the structure of the agreement deviates from a standard company car agreement, which is granted directly in return for services rendered. Apart from the tax and social security framework conditions of the JobRad model, there is no difference whether the employee buys the bicycle himself, leases it himself or - as in the present case - uses the employer as an intermediary. The agreement was therefore also not surprising within the meaning of Section 305c BGB.

The appeal against the decision filed with the Cologne Higher Labour Court is pending (6 Sa 552/23).

Consequences for the practice

From a practical perspective, the favourable decision creates legal certainty for the implementation of JobRad models in practice. Employers should make clear in the user agreement with the employee that they are effectively acting as an intermediary for the continued use of the JobRad and that sufficiently clear wording ensures that the employee is also formally obliged to pay the monthly usage fees on an ongoing basis, even for periods in which the employee is not entitled to remuneration from the employment.