Employment Law29.09.2022 Newsletter
Focus on Labor Law - 3rd quarter 2022
In the third quarter of 2022, employers faced several landmark labour court decisions as well as legislation that will have a tangible impact on HR operations. Besides the reform of the German Act on Proof of Working Conditions in an Employment Relationship [Nachweisgesetz, NachwG], which came into force on 01 August 2022, HR departments are now also facing enormous challenges through the ruling of the Federal Labour Court [Bundesarbeitsgericht, BAG] of 13 September 2022 on the recording of working hours and the ECJ ruling of 22 September 2022 on the statute of limitations for (residual) holiday claims. Other recently published BAG rulings are also forcing companies to adjust their processes in the field of compliance and when concluding shop agreements. We are pleased to present all of these recent developments in case law and legislation in this issue of our Focus Labour Law.
1. New case law
1.1 No statute of limitations for holiday claims?
1.2 Employer's obligation to maintain a working time recording system
1.4 No consideration of RSUs in the compensation for a post-contractual non-competition clause
1.6 Liability risk for managing directors in the absence of a compliance structure
1.8 Employer's default in acceptance in the event of an excessive hygiene concept
1.9 No ostensible authority of the works council chairman when concluding shop agreements
1.10 Gross breaches of duty by the works council lead to its dissolution
1.11 Necessity of a laptop for mobile works council work
1.12 Limits of co-determination: smoking breaks subject to co-determination only to a limited extent
2. Legal developments
Extension of the German SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV)
3. 14th Labour Law Day at Oppenhoff on 10 November 2022
1. New case law
1.1 No statute of limitations for holiday claims?
It is not that long ago that the Advocate General's Opinions of March and May 2022 on the forfeiture of unused paid annual holiday caused a stir (Opinions of 17 March 2022 - C-518/20; C-727/20 and 5 May 2022 - C-120/21, respectively). However, with the ECJ’s ruling of 22 September 2022, the following is now certain: the claim to (payment in lieu of) holiday only becomes time-barred if the employer has fulfilled its obligation to indicate that the holiday must be taken.
If this is not the case, the employer cannot plead the three-year limitation period (ECJ of 22 September 2022 - C-120/21, C-518/20, C-727/20). Here, the national statute of limitations in Germany does not comply with Union law. It is therefore the responsibility of employers to inform their employees of any impending forfeiture of (residual) holiday claims and to document this. More details on this ruling can be found here.
1.2 Employer's obligation to maintain a working time recording system
The works council has no right of initiative where the introduction of time recording systems in the company are concerned. The BAG confirmed this in its ruling of 13 September 2022 - 1 ABR 22/21. At the same time, however, the aforesaid decision of the BAG has caused a stir in the discussion on the recording of working hours.
In the opinion of the Erfurt judges, namely, according to a Union-conform interpretation of Sec. 3 (2) No. 1 of the German Health and Occupational Safety Act [Arbeitsschutzgesetz, ArbSchG], employers are currently already obliged to introduce an objective, reliable and accessible system with which the working time of employees can be recorded. This is likely to render a large number of the currently practised trust-based working time models obsolete. However, following the BAG’s press release, it is still open at present what this means in concrete terms. Hence, currently disputed issues are whether such a system has to be maintained electronically, whether the obligation to record working hours can be validly delegated to employees, and what the consequences are in the event of a breach of the recording obligation. It remains to be seen whether the reasons for the decision will provide more detailed information in this regard. Further details of the BAG’s ruling as well as a checklist (german) with initial practical tips can be found here.
Alexandra Groth, Jennifer Bold
1.3. Forfeiture of the additional holiday claim of severely disabled employees because the employer has fulfilled its obligation to indicate the holiday claim and request that such holiday be taken
Severely disabled employees are generally entitled to an additional holiday of five days per calendar year. This is expressly stated by the law. However, the additional holiday claim can fundamentally only expire at the end of the holiday year or a permissible carry-over period in accordance with Sec. 7 (3) German Federal Holiday Act [Bundesurlaubsgesetz, BUrlG] if the employer has, in good time, fulfilled its obligations to indicate the holiday claim to the employee and request that such holiday be taken.
The parties disputed additional holiday for severely disabled employees in the years 2017 and 2018. In 2017, the claimant had applied for recognition as a severely disabled person, which was turned down in November 2017. The claimant informed the defendant employer, about this negative decision. In March 2019, when the claimant demanded that the defendant grant him the statutory additional holiday for the years 2017 and 2018, the defendant learned that the claimant had successfully pursued his appeal and legal action against the negative decision. The claimant had been recognised as a severely disabled person with a degree of disability of 50 with retroactive effect to the date of application.
The BAG (ruling dated 26 April 2022 - 9 AZR 367/21)only recognised the additional holiday for 2018. In the opinion of the Erfurt judges, the forfeiture of the additional holiday is fundamentally governed by the same conditions as those applicable to the forfeiture of the statutory minimum holiday. Prerequisite herefor is the objective existence of a severe disability. If the employer has no knowledge of the severe disability and if such is also not obvious, the additional holiday expires pursuant to Sec. 7 (3) BUrlG at the end of the holiday year or any permissible carry-over period, even if the employer does not comply with its cooperation obligations. In proceedings for recognition of a severe disability, the time limit and expiry of the additional holiday likewise depends on the employer's level of knowledge. Had the employee informed the employer without undue delay about the negative decision of the competent authority and about the (intended) filing of an appeal, the time limit on the holiday claim would still presuppose the fulfilment of the cooperation obligations. If, however, as in this case, the employee had only informed the employer of the negative decision but not that he had filed an appeal, the additional holiday claim would be subject to the statute of limitation even without any cooperative action on the part of the employer, with the exception of the holiday claim about which the employer should have informed the employee by the time of the authority's negative decision.
The BAG consistently continues its previous line of case law on the employer's cooperation obligations. Nevertheless, at this point it is worth taking another look at your employment contracts: the clauses on holiday entitlement should strictly distinguish between the statutory minimum holiday and contractual additional holiday so that, in cases of doubt, at least the contractual additional holiday is subject to forfeiture.
Cornelia-Cristina Scupra
1.4 No consideration of RSUs in the compensation for a post-contractual non-competition clause
In top positions, long-term compensation in the form of stock options or comparable rights is not uncommon and often represents a significant portion of the overall remuneration. However, these benefits are often granted directly by the Group's top management and not by the employing company. Until now, it has been unclear whether such benefits have to be taken into account when calculating compensation for a post-contractual non-competition clause.
The BAG had to decide on a case in which the employer had refused to take benefits from a so-called "RSU programme" of the parent company into account when calculating the compensation in the context of a post-contractual non-competition clause. The claimant subsequently filed an action for payment of an additional gross sum of EUR 80,053.65.
The BAG has clarified that additionally granted stock (option) programmes of a parent company cannot be taken into account as third-party benefits in the calculation of the compensation for a post-contractual non-competition clause, as their basis is not the exchange nature of the employment contract (ruling dated 25 August 2022 - 8 AZR 453/21). In the BAG’s opinion, the RSUs granted by the parent company are not "contractual benefits" within the meaning of Sec. 74 (2) German Commercial Code [Handelsgesetzbuch, HGB]. The granting of RSUs by the parent company could only qualify as "contractual performance" if the defendant had expressly or impliedly assumed a co-obligation with regard to their granting. However, in consideration of the overall circumstances of the individual case, such co-obligation was rejected.
With this ruling, the BAG has provided legal certainty with regard to all third-party benefits in connection with the calculation of compensation for a post-contractual non-competition clause. Companies and corporate groups are advised to have stock options to employees granted by the parent company in future and to exclude any co-obligation of the subsidiaries in order to avoid their later consideration in possible compensation in the context of a post-contractual non-competition clause.
Dr. Alexander Willemsen
1.5 Commencement of the preclusive period under Sec. 626 (2) German Civil Code in compliance investigations
If an employer conducts compliance investigations, the period for declaring an extraordinary notice of termination regularly does not begin until a person in the company who is authorised to declare the dismissal gains knowledge of the facts relevant to the dismissal (BAG dated 5 May 2022 - 2 AZR 483/21). However, if the employer purposefully prevents the flow of information, it is acting in breach of trust and can no longer plead observance of the two-week deadline.
The claimant worked as a sales manager for the defendant, a company that, among other things, handles confidential orders for the German Armed Forces. In July 2018, the defendant received a tip-off that confidential documents of the German Armed Forces were being circulated within its company. It subsequently commissioned an external compliance team to clarify the facts. This interrupted its investigations in June 2019 with an interim report to inform the management. The interim report was transmitted to the defendant on 16 September 2019, upon which the defendant gave the claimant extraordinary notice of termination on 27 September 2019 - and thus eleven days after transmission of the interim report. The internal investigations had revealed that the claimant had circulated the documents of the German Armed Force within the company - despite prior notice of their confidentiality.
The two lower courts upheld the action for dismissal, as the preclusion period pursuant to Sec. 626 (2) sentence 1 of the German Civil Code [Bürgerliches Gesetzbuch, BGB] had not been observed. The defendant had to be imputed with the knowledge of the Head of Compliance from the interim report in June 2019.
The BAG did not concur with this finding. The two-week termination notice period does not begin until a person entitled to declare the dismissal has gained full knowledge of the facts relevant to the termination. The point in time at which the Head of Compliance (who is not entitled to declare the dismissal) became aware of this was not decisive. The employer is only unable to invoke compliance with the preclusion period if it itself has purposefully prevented a person entitled to give notice on its behalf from gaining knowledge of the relevant circumstances at an earlier point in time or if such person gained knowledge at a late point in due to improper organisation. Neither was the case here. In particular, the flow of information had not been hindered in bad faith. The use of an external compliance team in itself also indicated that the defendant had intended to behave in a law-abiding manner.
The BAG’s ruling can be welcomed as it creates clarity for employers. The BAG rightly decided that the use of a compliance investigation does not in itself trigger the preclusion period of Sec. 626 (2) BGB, as this is initially intended to uncover the prerequisites for a possible termination. The BAG makes it clear that employers cannot arbitrarily prolong the clarification of facts. Compliance investigations that no longer serve to identify breaches of duty but serve exclusively company-related hindrance goals are no longer to be carried out to clarify labour law measures. It therefore remains a fine line as to when the time limit of Sec. 626 BGB is triggered. Especially in case of interim reports on compliance violations, employers need to carefully examine whether they set the preclusion period in motion. A detailed discussion of the aforesaid ruling can be found here.
Alexandra Groth
1.6 Liability risk for managing directors in the absence of a compliance structure
Managing directors are obliged to introduce and implement adequate compliance structures within the framework of their corporate organisation in order to prevent breaches of the law by the company or its employees. Here, the well-known dual-control principle can also be significant as a suitable and necessary compliance measure. A business manager who forgoes such a compliance system may expose himself to considerable liability risks.
In its ruling of 30 March 2022 - 12 U 1520/19, the Higher Regional Court [Oberlandesgericht, OLG] of Nuremberg ruled that a managing director who fails to establish an organisational structure that ensures compliance with the dual-control principle for damage-prone activities can be held personally liable to the company for any resulting damage.
The suing GmbH & Co. KG had asserted damage claims in the amount of approximately EUR 860,000 against the managing director of its general partner. He had breached his monitoring obligations in connection with damage caused to the company through the embezzlement activities of an employee. The claimant issues its customers with fuel cards, which they can use for cashless refuelling at service stations operated by the claimant. Several card customers overdrew their credit card limits. The responsible employee at the claimant noticed this, but did nothing about it, rather concealing the credit card overdraft instead. Despite adequate training measures by the management, the dual-control principle had not been observed with regard to the employee's activities.
The OLG Nuremberg essentially confirmed the judgement of the court of first instance, which had ordered the managing director to compensate the company for the damage incurred. A conscientious managing director’s duty of care (Sec. 43 (1) GmbHG) includes the establishment of an internal organisational structure that ensures the legality and efficiency of its actions. This also includes taking organisational precautions to prevent the company or its employees from committing breaches of the law. Although the managing director is not liable for the fault of third parties, he is liable if inadequate organisation, guidance and control enable or facilitate breaches of duty or criminal acts by company employees to the detriment of the company. The monitoring obligation could, for example, take the form of random, surprise checks. If, however, it is foreseeable that these measures will not suffice, for example because the activity is particularly damage-prone, sufficient monitoring of employees can require the introduction of the dual-control principle.
The particular significance of the decision for managing directors is obvious. They need to check whether the company has an adequate compliance management system. In order to decrease their own monitoring obligations, managing directors also have the option of delegating their own monitoring duties to employees directly subordinate to them. However, the so-called overall supervision of subordinate employees and their managerial and supervisory behaviour remains with the managing director in all events. It should also be noted that managers who are entrusted with monitoring compliance requirements also have to be adequately trained insofar.
Jennifer Bold
1.7 Corona-related business closures do not constitute an operational risk that has to be borne by the employer
In its ruling of 4 May 2022 - 5 AZR 366/21, the BAG confirmed its previous case law (BAG of 13 October 2021 - 5 AZR 211/21) and stated that employers specifically are not obligated to continue paying their employees' remuneration if the business has to be temporarily closed as a result of government measures. The reasons applied by the BAG to reject an operating risk on the part of the employer could also come into consideration when assessing the wage risk in the context of government orders in connection with the energy crisis.
In the case to be decided, the parties disputed the continued payment of the contractual remuneration for periods in which the employer had been prohibited from operating an amusement arcade by general decree issued by the city of Wuppertal on grounds of the pandemic. Both the Labour Court [Arbeitsgericht, ArbG] of Wuppertal and the LAG Düsseldorf upheld the employee's complaint. However, the employer successfully defended itself in the appeal on points of law filed with the BAG.
The BAG rejected the claimant’s remuneration claim pursuant to Sec. 615 sentence 3 BGB in conjunction with Sec. 615 sentence 1 BGB in conjunction with Sec. 611a (2) BGB despite default of acceptance, as the defendant employer did not bear the operating risk in the case at issue. In case of a business closure ordered by public decree, it is the purpose of the official measure that is decisive: if the closure order was issued to counter a risk arising through the employer's working methods and conditions, then the employer would also have to bear the operating risk and thus the remuneration risk in the event of default of acceptance. In the present case, however, the business closure served as a general measure to combat the pandemic, for which the employer was not responsible. The possibility of ordering short-time work or even taking out insurance against business closures does not oppose such assessment.
The BAG's correct statements provide employers with legal certainty in similar cases of business closures during the corona pandemic. However, this decision could also be of considerable significance in future if the emergency level of the gas emergency plan is declared. If this should force companies to cease production, for example, the question arises as to whether they will be faced with claims for default wages of their employees. This is unlikely to be the case if the federal government (partially) takes individual industries off the power grid. However, companies should not be lulled into a sense of security by the BAG's decisions: if the emergency level is declared, closure orders may not be issued. Rather, energy suppliers may find themselves no longer be able to provide gas, with the result that the companies themselves will be forced to make the decision to (temporarily) close down operations. Companies with high energy requirements in particular should therefore draw up their own emergency plans as quickly as possible and examine the (legal) options available to them (e.g. short-time work).
Annabelle Marceau
1.8 Employer's default in acceptance in the event of an excessive hygiene concept
If an employer orders an employee into quarantine, the employer is definitely obliged to continue to pay the remuneration for this period if the employee is not subject to a statutory quarantine obligation, according to the BAG in its ruling of 10 August 2022 - 5 AZR 154/22.
The defendant employer, a food producer in Berlin, had drawn up a company hygiene concept for protecting against COVID-19 during the pandemic. This provided for a quarantine obligation with a ban on entering the company, without a claim to pay, if an employee returned from an area designated by the RKI as a risk area. Insofar, the hygiene concept was covered by the Corona Containment Measures Ordinance [Corona-Eindämmungsmaßnahmen-VO] of the State of Berlin in force at the time. However, the quarantine requirement did not apply if the returnee had a medical certificate and a recent laboratory result showing a negative PCR test result obtained no more than 48 hours before entry into the country and was also without COVID-19 symptoms. However, the employer's hygiene concept did not provide for such an exception.
The claimant took a PCR test before leaving Turkey, which at that time was designated as a risk area by the RKI, and the test was negative, as was the result of a further test taken by him after arrival in Germany. The claimant's doctor also certified that he was without symptoms. Nevertheless, the employer refused the claimant access to the company for a period of 14 days and did not pay him any remuneration. Thus, the employer went beyond the regulatory requirements of the State of Berlin. The claimant then filed a claim for remuneration in default of acceptance. The LAG upheld the complaint. The employer's appeal on points of law against this decision was unsuccessful before the BAG.
The employer was in default of acceptance of the work offered by the claimant. The ban on entering the company could not lead to the claimant's inability to work pursuant to Sec. 297 BGB because it was the employer itself that was the cause of the employee’s inability to perform his work. The employer had also not shown that it was unreasonable for it to accept the work performance on grounds of specific operational circumstances. Furthermore, the instruction to stay away from the company for a period of 14 days without continued payment of wages was unreasonable and not covered by the right of direction under Sec. 106 German Industrial Code [Gewerbeordnung, GewO]. In addition, it could have adequately ensured the necessary and appropriate protection of the health of its employees pursuant to Sec. 618 BGB by offering the claimant the possibility of taking a further PCR test to essentially exclude a COVID-19 infection.
As we head towards the cooler seasons, we can certainly expect infection rates to rise. Although employers can still create hygiene concepts that go beyond regulatory requirements, protection at any price, as was widely practised at the height of the pandemic, has been opposed by the BAG, however, in reference to its proportionality. Employers should therefore continuously review their hygiene concepts with a view to the applicable measures.
Dr. Johannes Kaesbach
1.9 No ostensible authority of the works council chairman when concluding shop agreements
When concluding a shop agreement, employers may no longer rely on the fact that the signature of the works council chairman is also based on a due and proper resolution of the works council. The principles of ostensible authority do not apply, as shop agreements can also have a normative effect to the detriment of the company’s employees (BAG dated 8 February 2022 - 1 AZR 233/21). This extremely practice-relevant decision of the BAG now imposes increased monitoring obligations on employers when concluding shop agreements.
In the case to be decided by the BAG, an employee sought a declaration to the effect that his basic salary should be calculated according to a shop agreement from 1967. In the employer’s opinion, however, this had been effectively replaced by a new shop agreement in 2017, which the employee considered invalid due to the lack of a due and proper works council resolution. The employer therefore additionally invoked the principles of ostensible authority, since it had relied in good faith on the chairman’s representative authority and the works council had not drawn its attention to the absence of a resolution, despite knowledge hereof on the part of all of its members.
The BAG considered the shop agreement concluded in 2017 to be provisionally invalid in the absence of a due and proper works council resolution to conclude such shop agreement. The principles of ostensible authority are incompatible with the legal position of the chairman of the works council. Pursuant to Sec. 26 (2) sentence 1 BetrVG, the chairman represents the works council only within the scope of the resolutions adopted by the council. In addition, it follows from the normative character of the shop agreement that any adverse effects on employees resulting from the shop agreement require a legitimising legal basis. This legal basis arises from the decisions made by the works council and requires a due and proper resolution passed by a majority.
From now on, employers therefore need to carefully check the existence of a proper works council resolution when concluding shop agreements. They are entitled to request from the works council an extract from the minutes of the meeting showing the resolution on the conclusion of said shop agreement. According to the BAG, this request must be made "promptly" after conclusion of the shop agreement. Ideally, employers should therefore have the relevant excerpt from the minutes of the meeting submitted to them when signing the shop agreement and should archive it together with the concluded shop agreement for evidence purposes. The employer can counter any accusation of mistrust by the works council with a simple reference to this BAG ruling. Alternatively, the employer itself can request that a works council meeting be convened and an additional item put on the agenda in accordance with Sec. 29 (3) BetrVG. If the employer has participated in this meeting, it can request the relevant part of the minutes of the meeting in accordance with Sec. 34 (2) BetrVG. Thirdly, the defect of a missing resolution can also be remedied by a subsequent works council resolution analogous to Sec. 177 (1) BGB. However, this naturally requires the cooperation of the works council, on which the employer cannot rely.
Isabel Hexel
1.10 Gross breaches of duty by the works council lead to its dissolution
It is a rarity for a labour court to actually determine the dissolution of a works council due to a gross breach of duties. TheLAG Hesse had to decide on such a remarkable case after almost two thirds of the workforce and the employer had applied for the dissolution of the works council.
The facts of the case sound contrived: the employees applying for the dissolution claimed that the relationship between the works council and the workforce as well as the management had broken down to such an incurable extent that a cooperation based on trust was no longer possible. The works council was harsh and aggressive, verbally attacking colleagues, exerting pressure and acting against colleagues and the employer. Talks had not produced any results, and the works council had refused mediation. The workforce, however, wanted a trusting cooperation with the employer. Furthermore, the employer argued that the works council had made false allegations in another court case concerning the rejection of a hiring pursuant to Sec. 99 BetrVG. By doing so, the works council had wanted to conceal the fact that it had missed the one-week deadline for refusing its consent in accordance with Sec. 99 (3) BetrVG. The works council had not even corrected these false allegations about the timing of the refusal of consent at a later date, despite the fact that it should have become clear to the council on grounds of further facts that its factual assertions could not be correct.
The LAG Hesse dissolved the works council pursuant to Sec. 23 (1) sentence 1 BetrVG for gross violation of its statutory duties (decision dated 23 August 2021 - 16 TaBV 3/21). The court primarily based its decision on the fact that the works council had knowingly presented untrue facts in legal proceedings against the employer. This was incompatible with the principle of a trust-based cooperation. This also applied to objectively false representations that may initially have been made in good faith. It was the duty of the works council to rectify its statement as soon as it was able to recognise the incorrectness of its own statement. In principle, a gross breach of duty on the part of the entire works council as a body is required for the dissolution of the body, but the support or approval of unlawful conduct of individual members or its committees can also suffice. In this case, the entire council had been aware of the incorrect factual representation and had seen no reason to correct it. No express resolution of the works council was required insofar. In its reasoning, the LAG Hesse did not have to further address the question of whether the considerable atmospheric tensions described by the employees would in themselves also have been sufficient to dissolve the works council.
Even though such situations are not likely to be commonplace in company practice, the decision clearly shows that the BetrVG certainly provides the employer with means to counter gross violations by the works council of the obligations incumbent upon it. Sec. 23 (1) sentence 1 BetrVG also expressly mentions the possibility of excluding individual works council members from the works council if they neglect their statutory duties and powers.
Kathrin Vossen
1.11 Necessity of a laptop for mobile works council work
Employers may not refuse to provide a laptop for mobile works council work in accordance with Sec. 40 (2) BetrVG on the grounds that works council activities have to be carried out at the place of work. Since its amendment, Sec. 30 BetrVG allows works council meetings to be held by telephone or video conference, irrespective of any pandemic situation. The LAG Cologne stated this in its decision of 24 June 2022 - 9 TaBV 52/21, following a decision of the LAG Hesse (decision of 14 March 2022 - 16 TaBV 143/21).
The parties disputed the employer's obligation to provide the works council with a laptop and a projector. After the works council, which was equipped with a stationary PC, had decided on rules of procedure for works council meetings by telephone or video conference, it applied in the first instance for the provision of a laptop from a specific manufacturer with specific technical features. In the appeal proceedings, the LAG Cologne confirmed the first-instance decision of the Labour Court insofar as the provision of a laptop with modern standard equipment pursuant to Sec. 40 (2) BetrVG could be regarded as necessary for the works council's activities. The LAG Cologne justified this by stating that the works council permanently required a laptop in order to perform its statutory duties. The decision on the necessity of the material resources lies within the works council's discretion. Sec. 30 BetrVG permits works council meetings by telephone or video conference regardless of any pandemic situation. Therefore, the employer cannot refer the works council to an obligation to conduct the works council activities at the business premises. In particular, the temporary provision of a laptop in individual cases is not sufficient, as the need for a video conference can arise at short notice and the works council cannot reasonably be expected to transmit and delete the necessary data on a laptop provided on a temporary basis. However, the employer has the right of choice with respect to the acquisition of the laptop and thus also regarding the manufacturer.
The decision takes into account the digitisation of works council activities, which is considered in Sec. 30 BetrVG. Employers who are confronted with corresponding demands by works councils should therefore not prematurely reject the provision of a laptop, but should carry out a case-by-case examination in order to avoid cost-intensive legal disputes.
Moritz Coché
1.12 Limits of co-determination: smoking breaks subject to co-determination only to a limited extent
A company’s instruction to the effect that smoking is only permitted during the specified breaks is regularly not subject to the right of co-determination of the works council under Sec. 87 (1) No. 1 BetrVG, as the instruction is intended to ensure observance of the working hours (LAG Mecklenburg-Vorpommern dated 29 March 2022).
The company and the works council disputed whether an employer's code of conduct regulating the time and place of smoking breaks was subject to co-determination by the works council pursuant to Sec. 87 (1) No. 1 BetrVG. The works council and the company had already negotiated the working hours and a general ban on smoking on company premises outside so-called "smokers’ islands" in a framework collective agreement and work regulations. In the disputed code of conduct, the employer has now pointed out once again this general ban on smoking outside the "smokers’ islands" and also clarified that smoking is only permitted during the breaks as provided for in the collective agreement. The works council appealed to the LAG against the first-instance decision, which found that the code of conduct could be issued without the work’s council’s co-determination.
The LAG confirmed the first-instance decision. To begin with, it pointed out that the notice that smoking was only permitted in the designated "smokers’ islands" did not violate the works council's right of co-determination. The framework collective agreement and the work regulations, which only permitted smoking in the "smokers' islands", already contained collectively agreed regulations which precluded the works council's right of co-determination. However, the reference to the fact that smoking is only permitted during the breaks provided for in the collective agreement also does not violate the works council's right of co-determination. Although the LAG took into consideration the violation of the right of co-determination pursuant to Sec. 87 (1) No. 1 BetrVG insofar, according to which questions concerning order at the company and the conduct of employees at the company are subject to co-determination, it explained – in reference to the relevant case law – that, according to this standard provision, the only regulations and instructions subject to co-determination are those which concern the operational coexistence and interaction of the employees. In contrast, regulations and instructions that directly specify the duty to work - the so-called work conduct - are not subject to co-determination. If a measure simultaneously has an effect on order and work conduct, then this would depend on which regulatory purpose prevails. In the case at hand, the LAG came to the conclusion that the code of conduct was aimed exclusively at regulating work conduct. It was solely up to the employer to decide whether to allow additional smoking breaks during working hours. There is no obligation to grant a smoking break during working hours, even if the employee is currently unoccupied due to a fluctuating workload.
The present decision shows that specifications by the employer that determine compliance with existing working time regulations are not subject to co-determination. It is a fine line but, fact is, not everything is subject to co-determination. Especially in cases where there are highly detailed working time regulations, co-determination is exhausted and more concrete specifications generally concern (co-determination-free) work conduct.
Jörn Kuhn
1.13 Works council's right to information pursuant to Sec. 80 (2) sentence 1 BetrVG - requirements for the reference to the task and for the data protection concept to be submitted by the works council
Can the employer refuse to provide the works council with information about the severely disabled employees at the company with reference to data protection? In its decision of 20 May 2022 - 12 TaBV 4/21, the LAG Baden-Württemberg clarified the relationship between the works council's request for information on severely disabled employees and the requirements for a data protection concept to be submitted in this connection by the works council.
The works council demanded that the employer inform it of the number and names of the severely disabled persons or persons of equal status employed in the company in order to plan the election of a representative body for severely disabled persons and to participate in the integration of severely disabled persons in accordance with Sec. 80 (1) No. 4 BetrVG. The employer refused to provide the information on the grounds that the relevant data was subject to data protection. The required consent of the employees was lacking, as well as a concrete reference to the task. The works council subsequently drew up a data protection concept and submitted it to the employer.
The LAG ruled that the works council had demonstrated a sufficient reference to the task and had properly drawn up the required data protection concept, with the result that the requirements for a right to information have been met. The need for the information arose from the works council’s concrete representation of the plan to initiate an election for the representation of severely disabled persons. In particular, the question of the eligibility to vote needed to be determined at an early stage. The claim to information was also based on Sec. 80 (1) No. 4 BetrVG and Sec. 176 of the German Social Code Book IX [Sozialgesetzbuch IX, SGB IX], as this not only relates to the monitoring obligation pursuant to Sec. 80 (1) No. 1 BetrVG, but also to observance of the regulations on the integration of severely disabled persons. The consent of the severely disabled persons was not required, because the BetrVG does not make the fulfilment of tasks of the works council dependent on the consent of the employees. There is also no reason to assume that protectable interests of the severely disabled persons conflict with the requested information, as the corresponding application of Sec. 22 (2) German Federal Data Protection Act [Bundesdatenschutzgesetz, BDSG] has been taken into account. The works council had submitted a sufficient data protection concept.
The decision of the LAG Baden-Württemberg shows that data protection has also become an element of collective labour law. Already with the introduction of Sec. 79a BetrVG, the works council was required to comply with data protection regulations when processing personal data. In its decision, the LAG Baden-Württemberg has now stated that the works council must observe the same requirements as the employer insofar, and that the need for a data protection concept arises from Sec. 26 (3) and Sec. 22 (2) BDSG. The absence of such protective measures or their inadequacy would lead to the exclusion of the right to information.
Employers therefore have to carry out a two-stage preliminary check before releasing data to the works council. In the first step, it must be examined whether a task exists under shop constitution law, and in the second step, whether the manner in which the data is processed by the works council complies with data protection law. If there is no sufficient data protection concept, the release of the data can be refused.
Anja Dombrowsky
2. Legal developments
Extension of the German SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV)
On 09 September 2022, the Bundestag passed the new SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV), which will apply from 01 October 2022. The published regulations have been significantly toned down compared to the previous draft bill, and ultimately transfer a colourful bouquet of possible protective measures into the employers' sphere of responsibility.
Just in time for the supposed "corona summer break" to come to an end, Germany’s Federal Minister of Labour Hubertus Heil has launched a new SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV). This will already apply from 01 October 2022 onwards, in order to effectively counter the expected increase in the number of infections over the coming autumn and winter. The Ordinance has once again been limited in time, so that a new assessment of the infection situation can be made when it expires on 07 April 2023.
A draft of the Corona-ArbSchV was initially published on 24 August 2022 that, among other things, once again provided for a mandatory offer by employers for their employees to work from a home office as well as the provision of corona testing opportunities. However, these regulations did not find their way into the adopted Ordinance. Rather, the focus is now on the employers’ obligation to draw up a company hygiene concept.
The hygiene concept to be developed should be drawn up on the basis of a risk assessment in accordance with Secs. 5, 6 ArbSchG, taking into consideration the following measures:
- Maintenance of a minimum distance of 1.5m between two people,
- Ensuring hand hygiene,
- Adherence to cough and sneeze etiquette,
- Ventilation of indoor spaces to protect against infection,
- Reduction of work-related personal contacts,
- Offer of home office, provided there are no opposing work-related reasons,
- Offer of free testing opportunities for employees not working from home offices
However, the Ordinance stipulates that employers must provide medical face masks if other technical and organisational protective measures are not sufficient to protect employees. Furthermore, employers are required to give their employees paid time off work for the time required by them to receive a corona vaccination.
Ultimately, the regulations in the new Corona ArbSchV do not present any surprises, which means that their implementation at the company should not pose any major challenges. However, insofar as no corresponding hygiene concept has been drawn up yet, now is the time to act fast. The co-determination rights of employee representatives must also be taken into account.
Annabelle Marceau
3. 14th Labour Law Day at Oppenhoff on 10 November 2022
On 10 November 2022, from 10:00 a.m. to 5:00 p.m., this year's Labour Law Day will be held at our office in Cologne. The event will be held in hybrid form, thus also offering the possibility of participating online.
In the morning, we will focus on the shortage of skilled workers and examine current developments as well as the "labour law toolbox" for recruiting and retaining employees. Furthermore, on the topic of ESG, we present the future challenges faced by companies in the area of reporting obligations and their impact on labour law.
In the afternoon, Prof. Dr. Greiner will inform us of labour law developments on the topics digitisation and artificial intelligence, and will comment on the implications of the BAG ruling on time recording. This will be followed by our customary overview of the most recent and most important decisions of the labour courts as well as noteworthy legislative proposals, including current topics related to the energy crisis.
We would be pleased to welcome you to this day of interesting lectures and lively discussions. Further information can be found here.
For queries and comments, please feel free to contact our authors directly by e-mail at [email protected].
