In employment law we represent employees, employers and works councils. We offer well-founded legal advice over the whole spectrum.
Since employment law is not regulated in a standard body of laws, numerous laws, contracts and wage agreements as well as individual contractual agreements must be taken into account. It is only possible to provide the client with correct advice with a comprehensive overview of the regulations.
Since the period for bringing an action is short, with a given notice of cancellation and frequently agreed expiry dates in the work or pay agreement, it is important to legally review the existing problems as quickly as possible so that no claims are lost. For this reason a consultation can be advisable before, during and even when or after terminating the employment contract.
Relevant key words are for example:
- Time limitation
- Employment contract, manager’s service contract
- Operation agreement
- Employment reference, dismissal protection
- Termination/wind-up agreement
- Vacation law
With the warning, the employer reproaches the employee in writing for a specific misdemeanour. There are strict specifications in regard to content and form since the warning usually serves to state the notice of termination in the case of a further infringement against obligations under the employment contract. Employers should therefore know precisely how a warning should appear. Employees should check whether the reproach made is justified.
Employment contract, manager’s service contract
The contract between the employer and employees forms the basis for the entire working relationship. The content should therefore be consistent with the status of current case law practice when concluded since subsequent amendments cannot be made unilaterally. Naturally there are contractual regulations which tend to act in favour of the employer or the employee. An appropriate consultation is therefore recommended before concluding the contract.
With the employment reference the employer assesses the work of the employee during the working relationship. A good employment reference can significantly improve the prospects on the job market but a poor employment reference can also close doors. In view of the, in some cases, very complex subject of “certificate language”, specialist advice should be sought if there are any doubts as to the content of the reference.
If one contracting party or both contracting parties wish to terminate the working relationship, along with the route of giving notice, there is also the route of concluding a contract to terminate the working relationship, for example to agree a financial settlement. Such an agreement can also be made even after giving notice of termination in order to possibly avoid a court proceedings. It should be borne in mind however that such an agreement can result in a time limit with regard to unemployment benefit.
It is possible to impose a time limit on the working relationship in advance. This has the result that the working relationship ends without any need for a notice of termination. The termination protection law or other laws which prohibit the termination of certain employees then do not apply. The time limitation can be applied under certain circumstances without substantive grounds or with substantive grounds. A time limitation without substantive grounds is however only possible if the employee was not working for the same employer in the last three years, in addition it is time-limited to two years.
The most important term which every employee must know is found in § 4 of the termination protection law. There it specifies that an action against a termination must be filed at the competent employment tribunal within a term of three weeks. If the action is not filed, the termination is legally valid in most cases and can no longer be contested.
It is agreed between the parties that the employer can arrange additional work. If an employee works extra hours, these should basically be remunerated by the employer. Alternatively it can be agreed that the excess hours are compensated by time off in lieu. It can be agreed in the employment contract that a certain monthly number of excess hours should be compensated at the basic rate.
Protection against dismissal
The vast majority of the regulations relating to general protection against dismissal are found in the dismissal protection law. Here it is specified under which conditions companies can dismiss individual employees. At the same time, companies are set clear limits as to when dismissals are inadmissible. In addition, there are a number of special regulations in other laws which restrict or even prohibit scope for dismissal.
Basically any employee, even those who are marginally employed have a claim to leave. This follows from the Federal Vacation Act. The agreement in the employment contract is fundamentally crucial for the duration of the leave. However, the employee is owed at least four weeks of paid leave per year. Claims to leave can be forfeited however if they are not made in the current calendar year and there is no regulation relating to the transfer of leave between the contracting parties.