"Monthly Dose" Employment Law: January 2024

1. Notification pursuant to Section 613a (5) No. 3 BGB about the collective agreement status: No negative attestation (BAG judgement of 29 June 2023, 2 AZR 326/22)

Employees whose employment is transferred to a new employer due to a transfer of business pursuant to Section 613a of the German Civil Code (Bürgerliches Gesetzbuch, BGB) must be informed by the previous employer or the new employer in accordance with Section 613a (5) BGB of the information items specified therein with regard to the transfer of their employment due to the transfer of business. Complete and accurate information is a prerequisite for the commencement of the one-month period for the employee's right to object to the transfer of their employment due to the transfer of business as set out in Section 613a (6) BGB. Incorrect or incomplete notification does not start the objection period and employees can in this case exercise their right of objection up to the time limit of forfeiture. The information on the rights and obligations applicable to the new employer pursuant to Section 613a (5) No. 3 BGB must also include information on the applicability of collective bargaining standards. In its decision of 20 September 2023 (2 AZE 326/22), the German Federal Labour Court (Bundesarbeitsgericht, BAG) had the opportunity to assess whether the duty to inform must also include the collective agreements applicable to non-tariff employees.

The plaintiff employee worked for the defendant employer in a non-tariff employment. He was not a member of a trade union. His employment contract did not contain any reference clause(s) to collective agreements. At the defendant, collective agreements only applied to employees bound by collective agreements. These collective agreements also included a company-related collective agreement (TV Switch), which contained provisions on socially acceptable personnel adjustment measures within the defendant's group and included, among other things, the establishment of an internal job market with a group-owned placement company (Switch). The collective agreement also contained the statement that the group companies covered by it would also ensure its application to employees not covered by collective agreements.

The plaintiff's employment was transferred to another employer on 1 February 2017 due to a transfer of business. 

The defendant carried out the notification in accordance with Section 613a (5) BGB in December 2016. The notification letter was designed as a uniform notification letter for all employees affected by the transfer of business and contained the following information on the collective agreement status: (1) The new employer does not belong to any employers' association, is not bound by collective agreements and has neither concluded company collective agreements nor are collective agreements applicable by virtue of membership in an employers' association, (2) insofar as collective agreements were applicable to the employment prior to the transfer by virtue of collective agreements, the employment conditions regulated in these agreements pursuant to Section 613a (1) 2 BGB will become part of the employment between the employee and the new employer and how employment contract provisions apply. Section 613a (1) 2 BGB become part of the employment between the employee and the new employer and continue to apply dynamically like employment contract provisions, and (3) collective agreements continue to apply accordingly in employment of employees not bound by collective agreements with a reference clause in the employment contract. The notification letter did not contain a "negative clause", for example in such a way that no collective agreements are applicable for employees not covered by collective agreements, even with the new employer.

In May 2019, the plaintiff exercised his right to object in accordance with Section 613a (6) BGB. He claimed that he was still able to effectively exercise his objection at this time - more than two years after the notification - as the notification was incomplete in that the notification letter lacked information as to whether certain collective bargaining regulations (and in particular the TV Switch) would apply to the employment under individual or collective law. The plaintiff therefore sought a declaration that the employment relationship with the defendant continued due to his objection. 

The LAG Düsseldorf (judgement of 26 July 2022, 8 Sa 68/20) upheld the claim, essentially on the grounds that the letter of notification must also have contained explicit information that the TV Switch did not apply to the plaintiff's employment. 

The BAG upheld the appeal lodged by the defendant against the second court judgement and dismissed the action. It first confirmed its previous case law that the notification of the applicability of collective agreement standards also includes the question of the extent to which collective agreements in force at the seller are replaced by collective agreements in force at the purchaser. However, the catalogue of collective bargaining standards subject to notification pursuant to Section 613a (5) No. 3 BGB does not include the obligation to inform an employee not covered by a collective bargaining agreement as a "negative test", for example in such a way that no collective agreements are applicable to employment of employees to whom no collective agreements are already applicable at the previous employer, nor are any collective bargaining agreements applicable at the acquirer. As an employee not covered by a collective agreement, for whom no collective agreements had previously applied, the plaintiff could not have had any reason to doubt the application of collective agreements or their content in his employment relationship with the defendant, which was also not covered by a collective agreement, on the basis of the notification letter. This also applies to the TV Switch, as this - undisputed between the parties - would not have been applied to the employment relationship with the plaintiff before the transfer of the business. 

Consequences for practice

The proper notification of employees in the context of a transfer of business pursuant to Section 613a BGB in accordance with Section 613 (5) BGB includes - unchanged - one of the greatest challenges for employers in German labour law and they must in particular observe the very formal and restrictive requirements of case law with regard to the individual subjects of notification pursuant to Section 613a (5) BGB. 

This judgement also shows the limits of the duty to inform: Employers are not obliged with regard to the collective agreement status to inform employees not bound by collective agreements by means of a "negative certificate" that collective agreements that are somewhat applicable in the company of the previous/new employer are not applicable to their employment relationship even after the transfer of business. In addition, the BAG has once again pointed out that employers are not obliged to provide individual legal advice to employees in the context of the information letter, but can use a standardised information letter for all employees affected by the transfer of business, provided that this shows the various consequences for the different groups of employees.

2. Insulting statements in a private chat group from a limited circle of work colleagues: No protection of "confidential words in the chat group" ( BAG judgement of 24 August 2023, 2 AZR 17/23, 2 AZR 18/23 and 2 AZR 19/23 )

In its judgments of 24 August 2023 (2 AZR 17/23, 2 AZR 18/23 and 2 AZR 19/23), the BAG had the opportunity to continue its case law on the protection of legitimate expectations regarding the content of conversations between work colleagues in private discussion groups in three cases with similar content with regard to the subject matter of the dispute.

Since 2014, the plaintiff employees had been members of a WhatsApp chat group with other work colleagues who had been friends for many years and were partly related to each other. In November 2020, another work colleague joined the group. In total, the chat group essentially consisted of six, at times seven, active and former employees of the defendant employer. The group conversations covered both purely private topics and topics relating to the group members' working environment. The respective plaintiffs expressed themselves in the chat group in various chat posts about work colleagues and superiors (not included in the chat group) in a highly offensive, racist, xenophobic, sexist and inhuman manner and sometimes even called for violence against these persons. The defendant learnt about the statements of the respective plaintiffs by forwarding the chat content through a former group member and consequently issued extraordinary dismissals without notice to these employees. The defendant was of the opinion that the respective plaintiffs had seriously violated their contractual obligations through their statements. The respective plaintiffs were of the opinion that the content of the chat history could not be utilised as it had been a purely private exchange. The plaintiffs each brought actions for unfair dismissal, which were upheld by both lower courts. Although the Lower Saxony Higher Labour Court, as the court of second instance, considered the statements themselves to be good cause for extraordinary termination without notice in accordance with Section 626 (1) BGB, it took the view that the communication should be considered confidential due to the overall circumstances.

The BAG upheld the defendants' appeals and referred the decisions back to the LAG of Lower Saxony.

The BAG's starting point was that the respective xenophobic, racist or grossly offensive statements about the defendant and individual work colleagues not included in the chat could each constitute a serious breach of the duty of loyalty and therefore constitute good cause for extraordinary termination in accordance with Section 626 BGB. The BAG did not see any prohibition on the use of evidence with regard to the specific chat content. Such a prohibition could only be considered under both constitutional law and the General Data Protection Regulation (GDPR) if it would be mandatory to disregard factual submissions or evidence due to a protected legal position of a party to the proceedings. In the opinion of the BAG, the court's utilisation of the statements in the chat history of which the defendant accused the respective plaintiffs did not constitute an encroachment on their general right of personality in violation of fundamental rights. Although there is a sphere free of offence for statements made in a situation of special trust, a justified expectation of confidentiality must exist and be demonstrated, as is the case, for example, with family members or confidants in a close social contact comparable to that of family members. Whether, and under what circumstances, a litigant can rely on such an expectation of confidentiality depends, in the opinion of the BAG, on the content of the messages exchanged, the size and composition of the chat group, changes to the composition and, last but not least, the medium used. Accordingly, such an expectation of confidentiality in a group chat with work colleagues is only possible in exceptional cases with such defamatory statements. The relevant "end-to-end encryption" of data in Whatsapp as well as a long-standing friendship and, in some cases, kinship with work colleagues are not sufficient for such an assumption, according to the BAG. The size of the chat group with seven people at times, of which only three members expressed themselves in a comparable manner and the number of members was not continuously constant, also speaks against a confidential discussion group in the opinion of the BAG. Similarly, such maintenance cannot be assumed due to the long duration of the group chat. Furthermore, the ease of copying and forwarding speaks against a justified expectation of confidentiality. The BAG referred the legal dispute back to the LAG of Lower Saxony with the proviso that the respective plaintiffs must have the opportunity to explain in the further appeal proceedings why they could have a justified and not just a one-sided, subjective expectation of confidentiality that not a single group member would disclose their statements to third parties.

Consequences for practice

Private chats between work colleagues in WhatsApp groups continue to be very popular in practice. The BAG's clarifications in its judgement regarding the justified expectation of confidentiality for private statements in such private WhatsApp groups are very helpful in this context, particularly with regard to the restrictive standards for the employee's burden of presentation and proof regarding the justified expectation of confidentiality for private chat content, which must take into account the intensity of the statements, the size, composition and changes to the group, as well as the type of medium used. Employees who make insulting and derogatory comments about other employees or the employer will find it much more difficult in future to invoke a legitimate expectation of confidentiality and are therefore more likely to face consequences under labour law. Internal guidelines on the use of social media and communication platforms as well as employee training are recommended as preventative measures in order to increase the general understanding of an appropriate tone ("network etiquette") in the working environment and, in particular, in private (WhatsApp) chats.

3. Allocation of burden of proof and burden of presentation for overtime pay (LAG Hamm judgement of 24.05.2023, 9 Sa 1231/22)

In its judgement of 24 May 2023, the LAG Hamm had the opportunity to continue the legal principles on the allocation of the burden of proof in overtime proceedings.

The plaintiff was employed by the defendant employer as a warehouse employee and service technician. The gross monthly remuneration for a weekly working time of 40 hours was most recently EUR 2,500. The plaintiff participated in the electronic working time recording system set up by the defendant in the form of a time clock. After termination of the employment relationship, the defendant invoiced 299.5 hours of overtime with a gross hourly wage of EUR 10 and paid out the corresponding net amount. The plaintiff requested the settlement of 299.50 hours of overtime at a gross hourly wage of EUR 14.42 and the payment of the resulting difference totalling EUR 1,323.79. The plaintiff was of the opinion that the increased hourly wage was not justified. He was of the opinion that the increased hourly wage resulted from the gross monthly remuneration of EUR 2,500 and the weekly working time of 40 hours. The defendant argued that the calculation of the 299.5 hours of overtime was based on a transcription error and that the calculation of the overtime pay was based on an incorrect gross hourly wage of EUR 10. According to the data from the electronic working time recording system - which the defendant also submitted in the legal dispute - the plaintiff had only worked a total of 183.75 hours as overtime. Based on the correct gross hourly wage of EUR 14.42, this would have resulted in a total gross amount of only EUR 2,649.67. However, as the plaintiff had already received 2,995 euros gross, he was not entitled to any further overtime pay. In the legal dispute, the plaintiff countered the defendant's submission regarding the actual performance of 183.75 hours of overtime with the assertion that the defendant had "manipulated" the time recording, whereby he failed to substantiate this assertion.

The LAG Hamm dismissed the claim.

As a starting point, the employer is obliged to provide remuneration for the agreed work performance. This obligation initially only relates to remuneration for the agreed normal working hours. If the employee works overtime, the employer is only obliged to pay remuneration if it has caused the work to be performed or if it is at least attributable to it. In this respect, the employee bears the burden of presentation and proof of the circumstances justifying the claim. If the employee makes a corresponding submission, the employer must provide a substantiated response within the framework of a graduated burden of presentation and proof and submit in detail which work it assigned to the employee and on which days the employee complied or did not comply with these instructions from when to when. In the present case, the defendant substantiated its defence to the claim by submitting the monthly journals from the electronic time recording system. This showed that the defendant had once again miscalculated the number of overtime hours in favour of the plaintiff. However, the plaintiff was unable to substantiate his defence against the defendant's submission and specifically state on which days he claimed to have worked more than the 165.25 hours of overtime shown in the electronic time recording. He had merely limited himself to accusing the defendant of "manipulating" the monthly time recording without any recognisable evidence. However, the accusation of "manipulation" made by the plaintiff "in the blue" does not change the distribution of the burden of presentation and proof. The plaintiff should have substantiated why the data presented by the defendant did not correspond to reality according to his perception. He had not done so.

Consequences for practice

The judgement of the LAG Hamm is in line with the case law of the higher courts of instance on the allocation of the burden of presentation and proof in overtime proceedings. The burden of presentation and proof with regard to the circumstances giving rise to claims for remuneration due to overtime generally lies with the employee. Employers must substantiate such claims if they are disputed, at best by submitting extracts from electronic time recording programmes. It is then up to the employee to present and, if necessary, prove why these analyses are inaccurate. In procedural practice, this distribution of the burden of presentation and proof regularly proves to be a high hurdle for employees. The plaintiff in the present legal dispute also failed in this respect.

4. Dismissal by registered letter: Delivery receipt with signature of the postal employee as prima facie evidence of receipt of the letter at the time of the usual postal delivery times (LAG Nuremberg judgement of 15 June 2023, 5 Sa 1/23)

Before serving letters of termination, but also warnings, declarations of release, etc., the question always arises in practice as to how legally secure the use of a registered letter is and whether this method of service can at least provide prima facie evidence of receipt of the letter of termination. In its judgement of 15 June 2023 (5 Sa 1/23), the LAG Nuremberg once again had to deal with this question. 

In the case underlying the decision, the parties disputed the receipt of an ordinary notice of termination. The plaintiff had been employed by the defendant since 1 April 2021, whereby a notice period of three months to the end of the quarter had been agreed in the employment contract. In a letter dated 28 September 2021, the defendant terminated the employment with the plaintiff with due notice to 31 December 2021. According to Deutsche Post-AG's proof of delivery, this letter was posted in the plaintiff's letterbox by a Deutsche Post-AG employee on 30 September 2021. In the legal dispute, the plaintiff stated that s had been in inpatient treatment in a hospital from 28 September 2021 to 6 October 2021 and that she only received the letter of termination on 6 October 2021. With her action, the plaintiff seeks a declaration that the employment relationship did not end on 31 December 2021 as a result of the termination, but only on 31 March 2022.

The LAG Nuremberg dismissed the claim. If a notice of termination is sent by registered post and the proof of posting and the reproduction of the delivery receipt with the signature of the deliverer are available, prima facie evidence speaks in favour of both the receipt of the letter by the recipient and the receipt of the letter at the time of the usual postal delivery times.

The established actual course of events leads with a probability bordering on certainty to the posting of the item in the correct post box or letter box. Although incorrect deliveries are not excluded by law, experience shows that they are so unlikely that the assumption of prima facie evidence is justified. It could generally be assumed that the delivery would take place during the employee's assigned working hours and that it could be expected that the letterbox would be emptied immediately after the end of the mail delivery times. Accordingly, it was up to the plaintiff to show that the letter had been delivered to her letterbox outside normal postal delivery times, although there was no evidence of this. According to these legal principles, the letter of termination reached the plaintiff's sphere of influence on 30 September 2021 in such a way that, under normal circumstances, the plaintiff could have taken note of it on the same day, whereby the plaintiff was obliged to take the necessary precautions to actually take note of it, regardless of any absences. 

Consequences for practice

The judgement of the LAG Nuremberg is in line with labour law practice and confirms the procedure chosen here by the defendant employer of delivering the letter of dismissal by an external courier service provider with relevant documentation of the posting of the letter of dismissal in the employee's letterbox/the relevant receiving device as an appropriate instrument for the employer to demonstrate and prove receipt of the letter of dismissal.

5. Salary reclaim due to non-performance of work in the home office: burden of proof (LAG Mecklenburg-Vorpommern judgement of 28.09.2023, 5 Sa 15/23)

In labour law, the principle applies that the employee's entitlement to remuneration lapses in whole or in part if he or she does not perform his or her work or does not perform it in full. The employer bears the burden of proof for any non-performance. 

In its judgement of 28 September 2023 (5 Sa 15/23), the LAG Mecklenburg-Vorpommern also confirmed this allocation of the burden of proof for work performed in the home office. In the case at issue, the defendant employer, which operates a day care centre and an assisted living facility, employed the plaintiff employee as a care manager and senior carer. The plaintiff was also authorised to work from home. In particular, she had the task of revising the defendant's quality manual and other documents required for care management. She had to record her working hours in a specified table according to the start and end of work. 

After the employer gave notice of termination and ended the employment relationship, the defendant demanded repayment of wages for 300.75 working hours. She claimed that the plaintiff had neither made any changes to the quality manuals nor submitted any other work or documents during the recorded working hours. She had stated working hours of 300.75 hours without being able to provide any objectifiable proof of work. The defendant must therefore assume that the plaintiff did not perform any work during the hours she declared and is therefore entitled to repayment of the remuneration granted. However, it is undisputed that the plaintiff had sent various e-mails from her home office during the recorded working hours, which concerned various Word documents in connection with her tasks relating to the quality manual and other official content.

The LAG Mecklenburg-Vorpommern ruled in favour of the claim. The claims for repayment asserted by the defendant did not exist, as the defendant had not been able to substantiate that and to what extent the plaintiff had not actually performed her work duties. In this respect, the general principles for the burden of presentation and proof with regard to the non-performance of work by the employee would also apply to home office activities. In the present case, the defendant did not prove that the plaintiff failed to perform her work either in whole or in part. In particular, it had not shown that the plaintiff had not worked at all, at least on individual days or hours, and which days or hours this concerned. The plaintiff had performed various work activities in the home office, which was evident in particular from her emails to the defendant and other employees. Although the plaintiff had not completed the entire revision of the quality manual or sent it to the defendant, it could not be concluded from this circumstance that the plaintiff had not performed any work at all. It is irrelevant whether the plaintiff completed her work in the desired time or to the desired extent. An employee fulfils his performance obligation if he works to the reasonable extent of his personal capacity.

Consequences for practice

The decision of the LAG Mecklenburg-Vorpommern clarifies the restrictive requirements for the employer's burden of presentation and proof with regard to the non-performance of work by the employee, which exist in particular in the case of home office/remote work activities or at other work locations where the employee performs his work alone. If there are concerns about the actual performance of work, employers should endeavour to provide long-term documentation of the work results in order to meet the requirements for the burden of presentation and proof in order to be able to meet the employer's burden of presentation and proof in a potential legal dispute.

6. Recent developments in German Employment Law 2024

(1) Child sickness benefit in accordance with Section 45 SGB V: 15 days/30 days for single parents

According to Section 45 (1) sentence 1 of the German Fifth Social Book (Sozialgesetzbuch V, SGB V), insured persons are entitled to sick pay if they are absent from work to supervise, look after or care for their sick and insured child, another person living in their household is unable to supervise, look after or care for the child and the child has not yet reached the age of 12 or is disabled and dependent on help. The legislator extended the entitlement during the coronavirus pandemic for the care of children up to the age of 12 to a period of 30 days/60 days for single parents, most recently including the calendar year 2023. For the calendar years 2024 and 2025, the entitlement was set at 15 days/30 days for single parents.

(2) Sick leave by telephone

Based on the guidelines of the Federal Joint Committee on the assessment of incapacity for work and the measures for gradual reintegration in accordance with Section 92 (1) sentence 2 No. 7 SGB V (AURL), it has again been possible to take sick leave by telephone since 7 December 2023. According to Section 4 (5) sentence 2, para. 5a sentence 1 AURL, a medical history can be taken by telephone if a video consultation is not possible and the insured person has an illness that does not have severe symptoms. The initial determination of incapacity for work should not extend beyond a period of up to five days. In addition, the patient must already be known to the doctor. According to Section 4 (5) sentence 5 AURL, the initial determination of incapacity for work can be made during a video consultation for a period of up to seven calendar days. 

(3) Whistleblowing reporting centres

The Whistleblower Protection Act (Hinweisgeberschutzgestz, HinSchG), which came into force on 2 July 2023, previously required companies with at least 250 employees to set up internal reporting points for information on legal violations. With the entry into force of the amendments on 17 December 2023, Section 12 (1f) HinSchG, employers with at least 50 employees are now also obliged to set up and operate at least one internal reporting centre to which employees can turn to report grievances that have come to their attention in the course of their professional activities. Failure to set up an internal reporting office includes an administrative offence (Section 40 (2) no. 2 HinSchG), which is punishable by a fine of up to EUR 20,000 in accordance with Section 40 (6) HinSchG. 

(4) Increase in the minimum wage

The fourth ordinance on the adjustment of the minimum wage of 24 November 2023 raised the statutory minimum wage to EUR 12.41 per hour with effect from 1 January 2024 in accordance with section 1 No. 1 of the ordinance. This increases the earnings threshold for marginal employment in accordance with Section 8 SGB IV (mini-job) to EUR 538 per month. 

The minimum wage for trainees will also increase. For training contracts that begin from 1 January 2024, minimum remuneration rates are no longer set by law, but are updated in accordance with Section 17 (2) of the Vocational Training Act (Berufsbildungsgesetz, BBiG), whereby this update corresponds to the arithmetical average of all training remuneration agreed at the time the contract was concluded in a comparison of the two calendar years preceding the year of announcement. The amount of this minimum remuneration is published by the Federal Ministry of Education and Research in the Federal Law Gazette by 1 November of each calendar year at the latest. From 1 January 2024, the minimum monthly remuneration will be EUR 649 in the first year of the apprenticeship, EUR 766 in the second year, EUR 876 in the third year and EUR 909 in the fourth year. 

It should be noted that, in accordance with Section 17 (3) BBiG, a collectively agreed remuneration regulation applicable in accordance with Section 3 (1) of the German Collective Agreement Act (Tarifvertragsgesetz, TVG), which falls below the minimum remuneration limits mentioned, is also appropriate. 

(5) Amount increase if inclusive jobs are not filled

In accordance with the new version of Section 160 (2) SGB IX, the compensatory levy for failing to fill jobs with severely disabled or equivalent employees in accordance with the statutory quotas was increased to up to EUR 720 with an annual average employment rate of 0% as of 1 January 2024. In addition, failure to fill positions will no longer be penalised with a fine. 

(6) Lower income limit for parental allowance

Pursuant to Section 1 (8) of the German Parental Leave and Allowance Act  (Bundeselterngeld- und Erziehungsgesetz, BEEG), there is no entitlement to parental allowance if the entitled person earned a taxable income of more than EUR 200,000 in the last completed assessment period prior to the birth of the child. Couples are not entitled if the taxable income of both persons exceeds the amount of EUR 300,000. 

(7) Reform to facilitate support for training and further education

In future, funding conditions for further training programmes will be made easier. According to Art. 2 of the Act to Strengthen the Promotion of Initial and Further Training of 17 July 2023, Section 82a SGB III will be amended on 1 April 2024 to the effect that employees can receive qualification funds from the Employment Agency for further vocational training if there is a need for qualification for at least 20% of the employees in the employer's company due to structural change. For companies with fewer than 250 employees, it is sufficient if at least 10% of the employees are affected by a need for qualification due to structural change. The further training measures must take at least 120 hours and the employees in question must not have taken part in such subsidised further vocational training in the last four years. In addition, the Employment Agency should also provide greater support for vocational orientation through work placements and the subsidisation of mobility within the framework of vocational training if a training place cannot be obtained within a reasonable period of time. 

(8) Digital reporting of accidents at work

According to Art. 1 of the Ordinance on the Revision of the Notification of Insurance Cases in Statutory Accident Insurance of 17 July 2023, the Ordinance on the Notification of Insurance Cases in Statutory Accident Insurance (Accident Insurance Notification Ordinance - UVAV) stipulates that accidents at work and occupational illnesses pursuant to Sections 193, 202 SGB VII must be reported by electronic data transmission from 1 January 2024. 

(9) Expiry of the inflation compensation premium on 31 December 2024

In accordance with Art. 2 of the Act on the Temporary Reduction of the VAT Rate on Gas Supplies via the Natural Gas Network of 19 October 2022, the employer may continue to pay a tax-free inflation compensation premium of EUR 3,000 in addition to the wages already owed until 31 December 2024.

(10) Increase in supplementary health insurance contribution

According to the announcement of the average supplementary contribution rate pursuant to Section 242a (2) SGB V for 2024 dated 16 October 2023, the average supplementary health insurance contribution, which is paid equally by employers and employees, will increase by 0.1 percentage points to 1.7% in 2024.

* In favour of better readability, the gender-specific personal designations chosen on this website always refer to female, male and diverse persons at the same time. 

Published: January 2024