Littler Global Guide - Germany - Q1 2024

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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Federal Labor Court Rejects Motions for Recusal

Precedential Decision by Judiciary or Regulatory Agency

Author: Kim Kleinert, Associate – vangard | Littler

The Federal Labor Court (Bundesarbeitsgericht, resolution of January 24, 2024, Ref. 8 AS 17/23) rejected motions for recusal by a commercial lawyer against presiding judges at the Berlin-Brandenburg Higher Labor Court (Landesarbeitsgericht) who had not yet dealt with any of the plaintiff’s cases. The Berlin-Brandenburg Higher Labor Court may decide on further applications relating to judges.

Federal Labor Court Decision on Reimbursement Claims Against Works Council Members

Precedential Decision by Judiciary or Regulatory Agency

Author: Philipp Schulte, Associate – vangard | Littler

On March 2, 2024, the German Federal Labor Court (Bundesarbeitsgericht) published decision Ref. No. 7 AZR 338/22, ruling that employers may not seek reimbursement from council members for payment of invoices that were improperly addressed to the employer by third parties. The case involved a works council member who engaged external counsel for a matter unrelated to their works council duties. The external counsel invoiced the employer, who paid the invoice and deducted the cost from the works council member’s salary and the council member successfully sued their employer for reimbursement of the deduction for the invoice paid by the employer.

The Court did not deny that the employer had a claim for reimbursement by the employee for the paid invoice, but denied the claim on procedural grounds and held that matters concerning works councils’ duties and responsibilities have to be exclusively ruled on during proceedings specifically designed for works council matters, which the lawsuit for full pay was not.

This case establishes that legal recourse against works council members faces high challenges, and employers should be careful about paying third-party invoices unrelated to necessary works council work.

Sanctions for Formal Errors in Mass Dismissal Notifications May Be Lifted/Limited – Part II

Precedential Decision by Judiciary or Regulatory Agency

Authors: Christina Stogov, LL.M. (Münster), Senior Associate, and Dr. Rajko Herrmann, Partner – vangard | Littler

In December 2023, the Sixth Senate of the Federal Labor Court published a decision stating that it intended to deviate from case law of the Second Senate on the consequences of errors in mass dismissal notices. (Review our previous Littler GGQ update.) In contrast to the Second Senate, the Sixth Senate’s opinion is that errors in mass dismissal notices should lead to the invalidity of all the dismissals.

In response, on February 1, 2024, the Second Senate submitted several questions to the Court of Justice of the European Union (CJEU) on the interpretation of the relevant EU Mass Dismissal Directive. According to the Second Senate, the CJEU’s decision is relevant in deciding whether a new sanction other than the invalidity of dismissals is possible if errors are made in mass dismissal notifications. We will continue monitoring this case as it develops.

Draft Legislation Amending the Evidence Act

Proposed Bill or Initiative

Author: Franka Helena Schlemm, Associate – vangard | Littler

After tightening the Evidence Act in 2022, which now requires employers to provide employees with the essential terms and conditions of employment in written form, in January 2024, the German Federal Ministry of Justice published a draft amendment to the legislation. The amendment provides that an electronic employment contract with all the essential terms and conditions of employment satisfies the requirements of the Act if it has been sent to the employee in printable form and contains a qualified electronic signature.

The amendment does not apply to employees who work in certain economic sectors or industries listed in the Control of Unreported Employment Act.

Train Drivers’ and the German Right to Strike


Author: Lucas Corleis, Senior Associate – vangard | Littler

Strikes regularly occur in Germany to increase negotiating leverage in collective bargaining. Most recently the German Train Drivers’ Union (GDL) has been on strike since January in connection with its collective bargaining dispute with the German rail company, Deutsche Bahn. The union is seeking reduced working hours with full compensation. The GDL has been conducting repeated so-called Wave Strikes, where strike for a short period of time with a short notice period of just 22 hours in some cases.

On March 12, 2024, the Higher Labor Court for Hesse rejected Deutsch Bahn’s most recent motion to prohibit another strike. The court did not consider itself authorized to enact new rules restricting the right to strike under applicable law, which only limits the right to strike when conflicting rights of third parties, such as a risk to life, outweigh the right to strike.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.