Dreijährige Kündigungsfrist kann zu lange sein!

The Federal Employment Agency’s current “Skilled Labor Shortage Analysis” was published in June 2018. This analysis confirms a shortage of skilled workers, particularly in technical professional fields, in construction professions and in health and nursing professions.
Due to this shortage of skilled workers, many employers intend to bind their employees to the company through particularly long notice periods.
On October 26, 2017 (ref.: 6 AZR 158/16), the Federal Labor Court (BAG) dealt with the question of whether a long notice period is legally permissible without any concerns. The focus of the decision was the question of whether the employee had complied with the regular notice period applicable to him in accordance with Section 622 Paragraph 1 of the German Civil Code (BGB).

The starting point of the legal dispute was a self-termination by the defendant employee, who had been employed as a freight forwarder by his employer, the plaintiff, since December 2009. Because the latter wanted to secure the employee's expertise in the long term without losing him to a competitor, the parties signed an additional agreement to the employment contract in June 2012, which, among other things, provided for an extension of the notice period for both parties to three years at the end of the month. In this context, the gross monthly salary was almost doubled. After the employee learned that the plaintiff had her employees monitored undetected using so-called “keylogger software” that was installed on the employees' computers, the employee terminated his employment on December 27, 2014 with the statutory notice period of one month as of January 31, 2015.
The parties then argued about the effectiveness of the notice period. The employer was of the opinion that the employment relationship continued until December 31, 2017 due to the three-year notice period.
Although a long notice period usually has a positive effect on the employee, as it means they have a long time to look for a new job, an extension of the notice period is not unlimited. This is shown by the BAG's decision in the case of the forwarding agent.
In an overall review of Section 622 Paragraph 5 of the German Civil Code and Section 15 Paragraph 4 of the TzBfG, the BAG recognized in its judgment that it was in principle possible to bind an employee to the employer with a maximum notice period of 5 ½ years. However, even a notice period that applies equally to employers and employees and does not exceed the legal maximum limit could prove to be unreasonable. A notice period of this length represents, in particular, an “unreasonable restriction on the employee’s professional freedom of movement”.
In its ruling of October 2017, the BAG decided that the standard contractual agreement of a three-year notice period, which applies equally to both parties, turns out to be an unreasonable disadvantage when considering all the circumstances of the individual case, in particular taking into account the freedom to practice a profession protected by the constitution (Art. 12 Para. 1 GG). of the employee. The disadvantage for the employee is not outweighed by the job guarantee or the salary increase.
However, unreasonable discrimination within the meaning of Section 307 Paragraph 1 Sentence 1 BGB can be denied if the employee is contractually granted an advantage elsewhere. The advantage granted must strengthen the affected interest. It must also be of sufficient weight to adequately compensate for the impairment.
Implications for practice:
The BAG ruling shows that a notice period of three years is not always ineffective. Rather, a contractual commitment of up to 5 ½ years is possible.
However, the court expressly states that an extended notice period, even if it applies to both parties, may well be too long and therefore ineffective in individual cases.
Every employer should therefore always carefully check how much planning security, and therefore what notice periods, they need in the respective employment relationship.
When contractually agreeing particularly long notice periods, especially within the framework of general terms and conditions or one-off conditions, it is also crucial that the employer compensates the employee for any disadvantages incurred by the employee to the necessary extent.
The BAG's individual case decision should be taken into account, whereby a gross salary increase from €1,400 to €2,400 for a freight forwarder is in no way able to amortize the prevention of competition intended by extending the notice period.