Articles from Nadine Kirsch

Back in 2019, the European Court of Justice (ECJ) caused a stir with its decisions on vacation law (summarized by us under: Holiday law). The ECJ's decision that leave does not automatically expire at the end of the year or at the end of the carry-over period is particularly important in practice. The ECJ's requirements in this regard were immediately implemented by the Federal Labor Court (BAG) in its decision of 19.02.2019 - 9 AZR 541/15. If leave is to expire at the end of the year, employers now have the burden of taking the initiative and must give their employees specific notice, which must be given in good time in the calendar year (e.g. at the end of the 2nd quarter) so that the employee still has the opportunity to take their leave.

In a decision (currently only available as press release no. 4/20), the Federal Labor Court clarified that the employer is not obliged to inform and consult the representative body for severely disabled employees as a precautionary measure in the event of an intended transfer of a disabled employee if a decision has not yet been made on the employee's application for equal treatment.

In its decision (currently only available as press release no. 45/19), the BAG clarified that the statutory entitlement to continued remuneration in the event of illness is also limited to a period of 6 weeks if a new illness occurs during the existing incapacity to work, which is based on a different underlying condition and also results in incapacity to work (principle of unity of the insured event). A new entitlement to continued payment of remuneration therefore only arises if the first illness-related incapacity to work had already ended at the time when the further illness led to the incapacity to work.

According to a recent decision by the Federal Labor Court, a leave of absence in a court settlement only fulfills the employee's entitlement to compensatory time off to reduce a working time account if the agreement clearly states that the leave of absence is also intended to compensate for a positive working time credit.

Partial retirement is intended to enable a smooth transition for older employees from working life to retirement. Employers also like to use partial retirement models in order to achieve a socially acceptable adjustment of the workforce. Originally conceived by the legislator as a continuous reduction in working hours, the so-called block model has now become established in practice: The employee who previously worked full-time is still employed full-time during the so-called "work phase" and is then completely released from his or her obligation to perform work during the so-called "release phase" in the legally continuing employment relationship, with continued payment of the average remuneration.

If an employee is re-employed by the same employer 22 years after the termination of their employment relationship, the prohibition of fixed-term employment without objective grounds after previous employment as stipulated in Section 14 (2) sentence 2 TzBfG does not generally apply in a constitutional interpretation of the provision (BAG, judgment of 21.08.2019 - 7 AZR 452/07, currently only available as press release no. 29/19).

The facts in brief: The Catholic plaintiff worked as a chief physician in a Catholic hospital. After divorcing his first wife, to whom the plaintiff was married both in church and in a civil ceremony, the plaintiff married his second wife in a civil ceremony. When the defendant became aware of the remarriage, it terminated the employment relationship with the plaintiff. In the opinion of the defendant, the plaintiff had seriously breached the loyalty obligations arising from his employment contract by entering into a marriage that was invalid under church law. In a landmark ruling, the Federal Labor Court in Erfurt has significantly limited the influence of churches on labor law. The judges ruled on Wednesday, 20.02.2019 that a Catholic hospital may not dismiss a head physician simply because he had remarried after a divorce.

The ECJ recently caused a stir with two decisions on vacation law. This is because they turn German vacation law on its head and necessitate a change in the BAG's case law.

The involvement of the representative body for severely disabled employees is based on the principles of Section 102 BetrVG. The representative body for severely disabled employees therefore does not necessarily have to be consulted prior to the procedure at the Integration Office regarding the dismissal of a severely disabled employee.

The so-called bridging part-time has cleared the final legislative hurdle. Following the Bundestag, the Bundesrat has also passed the bill to amend the Part-Time and Fixed-Term Employment Act (TzBfG). The law is therefore expected to come into force on January 1, 2019.

The employer must tolerate a strike call on his company parking lot if there is no other possibility for the union to address the employees called to strike immediately before entering the company.

The Catholic plaintiff worked as a chief physician in a Catholic hospital. After divorcing his first wife, to whom the plaintiff was married both in church and in a civil ceremony, the plaintiff married his second wife in a civil ceremony. When the defendant became aware of the remarriage, it terminated the employment relationship with the plaintiff. In the opinion of the defendant, the plaintiff had seriously breached the loyalty obligations arising from his employment contract by entering into a marriage that was invalid under church law.