Aktuelles zur Massenentlassung - Besonderheiten bei Elternzeit

The employer's obligation to report mass layoffs in accordance with Sections 17 ff. of the KSchG is a complex issue for legal practitioners that requires closer consideration. Like hardly any other norm, the regulations on collective dismissals are subject to constant change in their application by the European Court of Justice and national courts.

Now, in a recent decision (decision of June 8, 2016, Ref.: 1 BvR 3634/13), the Federal Constitutional Court has once again developed the meaning of the regulations on collective layoff notices for the special case of parental leave.
In the case of employees on parental leave, the application of the regulations regarding notification of mass layoffs regularly led to questionable results.
The reason for this is that, for protection in the event of mass layoffs, it is crucial that the dismissal takes place within the time frame of Section 17 Paragraph 1 Sentence 1 KSchG (30 days). The relevant redundancy only needs to be reported if the required total number of redundancies is achieved. According to the case law of the Federal Labor Court, “dismissal” means the announcement of termination. It is therefore crucial whether a specific notice of termination is received by the employee within the 30-day period. If this is the case, the corresponding termination must be reported, otherwise not.
According to the Federal Constitutional Court's opinion, which must be followed, this situation results in a lower level of protection for employees who are on parental leave at the time of termination, especially in cases of company closure. For these people, according to Section 18 BEEG, termination is only permitted with the consent of the responsible highest state authority. Even in the event of a mass layoff, the employer must regularly carry out an administrative procedure with this authority before the termination can be declared. In the event of a company shutdown, approval is regularly granted by the responsible highest state authority, as the company shutdown is recognized as a “special case” within the meaning of Section 18 Paragraph 1 Sentence 4 BEEG.
However, the requirement to carry out the administrative procedure beforehand results in a delay in the notice of dismissal compared to the other employees affected by a company closure. In the event of a company closure, an employee on parental leave is usually only given notice of termination outside the 30-day period specified in Section 17 Paragraph 1 Sentence 1 KSchG, while the other terminations are usually declared uniformly and therefore within this period.
In the opinion of the Federal Constitutional Court, the Federal Labor Court's link to the receipt of the notice of termination with regard to the application of the regulations on collective dismissals leads to a de facto discrimination based on gender, since parental leave has so far been taken up by significantly more women than men. According to the Federal Statistical Office, almost a quarter of all mothers whose youngest child is under 6 years of age were on parental leave in 2015. Among the fathers, this only applied to just under 2 %. According to the Federal Constitutional Court, this de facto disadvantage due to gender cannot be justified under constitutional law. The Federal Labor Court's linking the date of receipt of the notice of termination therefore violates Article 3 Paragraph 1 of the Basic Law in conjunction with Article 6 Paragraph 1 of the Basic Law for employees on parental leave.
The Federal Constitutional Court corrects this unconstitutional application of the law by interpreting Section 17 Paragraph 1 Sentence 1 KSchG in accordance with the constitution to the effect that, for employees with special protection against dismissal, the 30-day period is also deemed to have been met if the application was submitted to the responsible authority within the deadline . In these cases, it is not the receipt of the notice of termination that matters, but rather the time at which the application is submitted in the preceding administrative procedure.
It is interesting that in its decision the Federal Constitutional Court does not only speak of employees on parental leave, but generally of employees with special protection against dismissal. In all of these cases, it is important to submit an application to the responsible authority. This reasoning makes it likely that, for example, even in the case of severely disabled people, the submission of the application for consent to the ordinary termination to the integration office should be taken into account and not the time at which the notice of termination is received. This should apply regardless of the fact that there is certainly no discrimination based on gender among severely disabled people.
It is also important to note that employees with special protection against dismissal will not be included in the scope of protection of the mass layoff notification if the application for approval is submitted to the responsible authority outside the 30-day period. In this case, which is by no means rare in practice, the provisions regarding notification of mass layoffs remain non-applicable to the employees affected.
Link to the decision of the Federal Constitutional Court:
http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2016/06/rk20160608_1bvr363413.html