Termination for operational reasons

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A termination for operational reasons is given if an employer terminates an employment relationship because he cannot continue to employ the employee in the company due to operational requirements. The cause of the termination is therefore in the responsibility of the employer . He cannot or does not want to continue his business with the previous number of employees. He makes an entrepreneurial decision that leads to a loss of jobs.

Within the scope of the Employment Protection Act (KSchG) in Germany, the employment relationship according to Section 1 KSchG may only be terminated for operational reasons if the employment requirement for one or more employees in the previously performed area of ​​responsibility ceases to exist and the employee is not continued to be employed in another vacant job can. If several comparable employees are affected, the employer must also select the employees he wishes to terminate according to certain social criteria (social selection). He must take sufficient account of the length of service, age, possible maintenance obligations and any severe disability of the employee. At the employee's request, the employer must provide the employee with the reasons that led to the social selection made.

According to the case law of the Federal Labor Court, the legality of an operational dismissal is measured using a three-stage test:

  1. the existence of a business decision that leads to the loss of one or more jobs,
  2. Reasons that prevent the employee from continuing to work in this company, so-called lack of other employment opportunities,
  3. proper implementation of social selection.

Business decision

The entrepreneurial decision is about the will of the entrepreneur, i.e. his organizational decision, which precedes the termination and leads to the loss of one or more jobs. The entrepreneurial decision of the employer can be based on internal as well as external causes.

Internal reasons

Internal reasons exist if the employer decides to take an organizational measure based on a business decision caused by economic or technical developments or fiscal considerations, the operational implementation of which eliminates the need for one or more employees to continue to be employed. In this case, the external circumstances are only the motive for the employer's entrepreneurial decision. These include, for example, rationalization measures such as merging departments, increasing work density, redefining the requirement profile for an established workplace, transferring work tasks from employees to freelancers, converting, restricting or relocating production.

External reasons

External causes are to be understood as circumstances that are independent of the organization and management of the company, that have a specific relationship to the company and that have an impact on the working conditions, such as a decline in orders or sales, a lack of raw materials or energy, the cancellation of third-party funds, and job cuts in the household. Although the Federal Labor Court adheres to the differentiation between external and internal circumstances, such cases are rarely encountered in labor court practice. This is due to the fact that the external factors are usually only presented as a motivation for the entrepreneurial decision and, so to speak, result in internal circumstances. As with internal reasons, external factors always require an implementing entrepreneurial decision, with which the employer adapts the employment situation to the order situation ("adjustment decision"). Employment opportunities do not automatically disappear due to reasons outside the company.

No further employment opportunity

Termination for operational reasons is socially unjustified and therefore ineffective if the employee concerned can continue to be employed at another, vacant job in the same company. The obligation to continue to work in vacant jobs is not only company-related, such as social selection, but extends to the entire company. A group-wide obligation to continue employment only exists if another group company has expressly agreed to take on the employee or if the takeover obligation results directly from the employment contract. The vacant jobs at the time of termination are vacant. If the employer can foresee with sufficient certainty that another occupied job will be available until the notice period has expired, this other job is also to be regarded as vacant.

Continued employment must also be given priority if it is only possible after the employee has been trained in a vacant position, possibly after a reasonable retraining or further training measure to be offered to the employee.

Social selection

The social selection is a term from German labor law . According to Section 1 (3) KSchG, a dismissal is also socially unlawful and therefore ineffective if there are urgent operational reasons for a dismissal, but the employer did not take social aspects into account or did not sufficiently take into account when selecting the employees to be dismissed. The need to make a social selection usually presupposes the applicability of the Dismissal Protection Act and is only necessary in the case of operational dismissals.

The social selection must extend to the entire company, not just to the department in which the job has disappeared. Your examination takes place in the context of the following steps: determination of comparable employees, selection decision, removal of individual employees.

Determination of the group of comparable employees

All mutually exchangeable employees at the same company hierarchy level (so-called "horizontal comparability") are to be included, i.e. all who could be transferred according to job-related characteristics and according to the individual contractual provisions within the framework of the management law. It should be checked whether the employee whose job has been lost could be unilaterally transferred to another job by the employer in order (if necessary after a short training period) to take on the role of the employee employed there. Of particular importance here is the scope of employment contract relocation reservations; The broader these are, the more extensive the group of employees to be included in the social selection. Employers are often not aware of this interaction when drafting employment contracts.

Selection decision

According to the aspects finally enumerated in the law, the comparable employee must then be identified who would be least affected by dismissal. This “socially strongest” employee is then to be dismissed. Since January 1, 2004, only the following criteria (so-called social criteria) have to be taken into account:

  1. Length of service
  2. Age
  3. Maintenance obligations
  4. Severe disability

In companies in which a works council has been elected and the parties to the company have agreed on so-called selection guidelines (see Section 95 of the Works Constitution Act ), the provisions of such guidelines must be taken into account. In this case, the social selection can only be checked for “gross errors” in the dismissal protection process. The social selection is only grossly flawed if the legal selection criteria were not taken as a basis at all or if the individual aspects were weighted in a conspicuous disproportion to one another.

Removal of individual employees from the social selection

It is possible to remove individual employees from the social selection. For example, when selecting employees, the employer can exclude those whose continued employment is “in the legitimate business interest” (so-called service provider clause , Section 1 (3) sentence 2 KSchG). In order to justify such an interest, however, the employer cannot rely solely on the fact that the employee is, for example, less susceptible to illness than another.

According to the new wording of the law, however, the “maintenance of the company's personnel structure” can represent a legitimate business interest. If the labor courts interpret this provision broadly, this devalues ​​the social assets of many (especially older) employees that they have acquired through their age and years of service. Then the employer can keep new, younger employees and terminate older long-term employees. The scope of this new regulation, which has been in force since January 1, 2004 and which had already been temporarily introduced in almost identical form under the Kohl government , has not yet been sufficiently clarified by the case law.

The reintroduced possibility of a “reconciliation of interests with a list of names” has a similar effect. Here, the employer and the works council agree on the employees to be terminated. The examination of the social selection is also in these cases, similar to the selection guideline, limited to “gross flaws” and the requirements for the burden of presentation and proof worsen to the detriment of the employee.

Protection against dismissal in small businesses and in the case of temporary employment agencies

Special features arise in small businesses and temporary employment agencies.

Small businesses

The Dismissal Protection Act only applies in companies with more than 10 employees (for employees whose employment relationship began before December 31, 2003, more than five employees apply). For this reason, a social selection of the type described above must only be made after these limits have been exceeded. In some exceptional cases, however, the Federal Labor Court has affirmed a "social selection in small businesses". However, these decisions only concerned cases in which mutual social interests and the minimum level of social consideration were blatantly violated. According to this case law, there is no basic obligation to carry out a social selection in small businesses.

Temporary workers (employment agencies)

The principles of social selection also apply to the termination of workers in companies that lease workers to other companies. The social selection is to be carried out on an operational basis. In the case of temporary employment, the company is that of the lender. The temporary workers who are employed remain members of the lender's company even during the period of their work with the borrower. The lender may have to replace an employee with one of the other hired workers who are less socially protected. As a rule, he cannot plead that he does not have to make a social selection, because the hirer reserves the right to make a final decision as to which employee should be employed with him. The leasing company may have to make the social selection before it sends the profiles of its employees to other companies when filling vacancies. In this case, it must send the borrowers the profiles of the more socially protected candidates.

See also

literature

  • Thomas Dieterich u. a. (Ed.): Erfurt Commentary on Labor Law , 11th edition, Munich 2010, Publisher: CH Beck, ISBN 978-3-406-60876-6
  • Martin Henssler, Heinz Josef Willemsen, Heinz-Jürgen Kalb: Labor law commentary , 2nd edition, Otto Schmidt publishing house, Cologne 2006, ISBN 3-504-42658-6
  • Wilfried Berkowsky: "The operational dismissal taking into account the works constitution law and the labor court procedure, as well as the labor court procedure, ISBN 978-3-406-54934-2
  • Eugen Stahlhacke, Ulrich Preis u. a. (Ed.): "Termination and protection against dismissal in employment", 10th edition, Munich 2010, publisher: CHBeck.
  • Gerhard Etzel u. a. (Ed.): "KR: Community commentary on the Dismissal Protection Act and other provisions on protection against dismissal", publisher: Luchterhand (Hermann); 10 edition 2012

Individual evidence

  1. ↑ See BAG May 18, 2006 AP No. 7 to Section 9 AÜG with further references.
  2. ↑ BAG NZA 2009, 312; BAG NZA 2006, 266; Gilberg NZA 2003, 818.
  3. ↑ BAG NZA 2003, 850.
  4. ^ BAG December 16, 2010 DB 2011, 879; July 10, 2008 AP No. 181 to § 1 KSchG 1969 Termination for operational reasons = NZA 2009, 312; September 21, 2006 AP No. 130 to § 2 KSchG 1969 = NZA 2007, 431; February 2, 2006 AP No. 46 to § 611 BGB Church Service.
  5. ↑ Schaub, Arbeitsrechts-Handbuch, 13th edition, para. 5.
  6. ↑ Berkowsky, Re. Kü § 5 Rn. 91 ff .; HK-KSchG / Dorndorf Rn. 856; KR / Griebeling Rn. 516 f., Quoted from Ascheid / Preis / Schmidt, Kündigungsrecht, 4th edition 2012, paragraph 474.
  7. ↑ Ascheid / price / Schmidt, right of termination, 4th edition 2012, §, 474th
  8. ↑ See KR / Griebeling Rn. 518.
  9. ↑ (Zepter DB 1999, 474; see also Rommé / Pauker NZA-RR 2000, 281, who therefore consider this distinction to be superfluous since the BAG rulings of June 17, 1999 (No. 465), quoted from Ascheid / Preis / Schmidt, right of termination, 4th edition 2012, paragraph 476).
  10. ↑ BAG October 18, 2012 DB 2013, 586 = NZI 2013, 151.
  11. ^ BAG March 29, 1990 - 2 AZR 369/89, NZA 91, 181.
  12. ↑ BAG June 5, 2008 - 2 AZR 107/07; BAG April 21, 2005 - 2 AZR 132/04, NZA 05, 1289.
  13. ↑ Second Senate of the Federal Labor Court in a judgment of May 31, 2007 (BAG Az: 2 AZR 306/06)
  14. ^ BAG judgment of February 21, 2001 AZ: 2 AZR 15/00.
  15. ↑ Federal Labor Court, judgment of June 20, 2013 - 2 AZR 271/12.
  16. ↑ Federal Labor Court, judgment of June 20, 2013, 2 AZR 271/12, paragraph 19.
  17. ↑ Lübeck Labor Court, judgment of September 4, 2013; Az. 5 Ca 1244/13; Labor law decisions 04/2013, p. 167.