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LAG Schleswig -Holstein: Employers must be informed of the request with Disabilities

employers have terminated employees with severe disabilities, without knowing of the severe disability or the application for recognition of a severe disability, the terminated vegetables severely disabled workers employers within three weeks after receiving the notice inform about this fact. Otherwise they lose their special protection against dismissal from § 85 SGB IX.


The facts:
The applicant has since 1988 worked as a machine called women to the defendant.

After the defendant had decided to build some points, they agreed with the works with a balance of interests to list for cancellations. Then, a dismissal of the applicant was intended. This had previously been accorded a degree of disability of 40, which in operation is not known and was not obvious. Still during the ongoing negotiations on the balance of interests they had submitted a new application to be a severely disabled. Here, too, she had not informed the defendant.

The applicant filed within the three-week period of § 4, sentence 1 KSchG dismissal action. Only on the date of application, the defendant learned - about four weeks after notice of dismissal - from the severe disability of the applicant. A short time later, the applicant was granted a degree of disability of 50. It has given its particular on employment protection and rely on error attributable to social selection.

had your claim, both before the Labour Court and before the LAG unsuccessful. The decision of the LAG is, however, pending the revision of the BAG (Reference: 2 AZR 463/10).

Decision:
The termination is effective and has terminated the employment relationship of the parties on time. It is lawful for operational reasons in accordance with the principles of social choice, after due consultation of the works council and collective redundancy notification pursuant to § 17 Consumer Protection Act.

the applicant can not invoke the special protection against dismissal as severely disabled according to § 85 SGB IX. Although the special protection against dismissal is severely disabled workers grds. even when the employer notice of dismissal was not aware of the severe disability. This requires that the employee but the employer after receipt of notice within a reasonable time of his severely handicapped status or the request for recognition of information as severely disabled.

shall be deemed appropriate in that regard in accordance with § 4, sentence 1 of the Consumer Protection Act a notice period of three weeks. Only then can an evaluation contradiction between action and notification period may be prevented. To leave the employee with a longer notice period, he would thus not help, since the termination after three weeks - would be considered effective - due observance of the limitation period. The three-week period must - also apply to an original application for a declaration of severe disability - again to avoid contradicting valuation.

In case of dispute, the defendant has learned only after three weeks of receipt of notice that an application exists for a finding of severe disability. It was too late. The applicant can not therefore rely on the special employment protection for disabled persons and related selection errors.

(LAG Schleswig-Holstein Judgement of 06/07/2010, 1 Sa 403 e/09)

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Court within three weeks after termination: automatic termination of employment on reaching the retirement age of employees is not necessarily discriminatory

Justice of the European Union
PRESS RELEASE No 103/10
Luxembourg, 12 October 2010
Public Information
Judgement in Case C-45/09:
Rosenbladt / Oellerking Gebäudereinigungsges. mbH

The automatic termination of employment on reaching the retirement age of employees is not necessarily discriminatory
results in Germany under the General Equal Treatment Act, that the terms under which an employment contract ends automatically when the worker reaches retirement age, the prohibition of discrimination can be withdrawn on grounds of age. Under German law it is allowed the social partners to introduce such clauses in collective agreements.
Rosenbladt woman was professionally for 39 years with activities Cleaning is concerned. Your employment ends, in accordance with the applicable collective agreement for the building cleaning industry at the end of the calendar month in which she is entitled to a retirement pension, latest by the end of the calendar month in which they turn 65 Years of age. As a woman Rosenbladt reached the retirement age of 65, she was informed by their employer that their employment relationship to end. Against this, Mrs Rosenbladt action before the Labour Court Hamburg, which has asked the Court for its ruling. It claims that the termination of their employment discrimination on grounds of age.
The national court asks essentially whether the automatic termination of employment at the legal retirement age against the 2000/78/EG1 in the Directive rules' ban on age discrimination violation. In today's ruling is
the Court first clarified that a clause to the employment relationship ends automatically when the worker reaches retirement age, one is immediately on the age-based discrimination. The Court then examined whether this difference in treatment can be regarded as justified.
is given by the Court ruled that such a clause is not mandatory in the entry is inserted into retirement, but that they have a kind and manner of termination of employment regardless, having reached the age of retirement has a notice to the content.
regard to the objective of the control target, the Court that the matter in question mechanism is based on a balance between political, economic, social, demographic and / or budgetary considerations and the decision depends, to extend the working lives of employees or On the contrary, provided their earlier retirement.
The Court pointed out that such provisions relating to the automatic termination of employment has long been part of the labor laws of many Member States and are widely common in the relations of working life. Since they give workers a certain stability of employment and long-term promise a predictable retirement, while delivering the employers some flexibility in their workforce planning, these clauses on the automatic termination of employment reflected a balance among conflicting, but legitimate
1 Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, p. 16).
www.curia.europa.eu
interests, into a complex context of relationships of working life and fits closely with policy decisions on retirement and employment. These objectives are generally considered to be those which can be a provided by the Member States appear unequal treatment because of age within the meaning of Directive 2000/78 as "objective and reasonable" and "in the context of national law" to justify.
to the Judgement of the Court states that it is therefore not unreasonable to assume if the authorities of a Member State or the social partners in this state that such clauses relating to the automatic termination of employment may be appropriate and necessary to this legitimate goals. The Court points out in that stop it in case of Ms Rosenbladt appropriate clause for a given not only to an age, but also takes into account the fact that the parties at the end of their career benefit to financial compensation by way of a retirement pension, and second, the employer is not entitled to unilaterally end the employment relationship. Moreover, opened the contractual basis, the opportunity to take advantage of this mechanism with considerable flexibility for use, so take into account the social partners, the overall situation of the labor market and the special characteristics of the jobs in can. The question German legislation also contains an additional restriction, since they employers are required to obtain the consent of employees to each clause or to have it confirmed, after ending the employment relationship automatically if the employee has reached an age at which it called pension can apply for, but this is under the normal retirement age. Finally, the Court stressed that under German law a person who wants to reach retirement age to continue an occupation, an occupation must not be denied for a reason related to their age.
The Court therefore concluded that Directive 2000/78 is a clause for automatic termination of employment on reaching the retirement age of employees, as provided in Germany under the collective agreement for the industrial workers in the cleaning, does not preclude.

NOTE: By way of a preliminary ruling may provide the courts of the Member States in a dispute brought before them, the Court questions of interpretation of Union law or the validity of an act of the Union. The Court does not decide the dispute itself. It is for the national court to rule on the case in accordance with the decision of the Court to decide. This Court's decision binds in the same way other national courts that are dealing with a similar problem.

Note: The full text of the Judgement can be found here .

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European Human Rights Court: German church employee terminations because of "adultery" not necessarily lawful

TERMINATION OF CHURCH OFFICERS for adultery: COURTS HAVE BETWEEN BOTH PARTIES RIGHTS AND DUTIES BALANCING ACCOUNT

bicameral judgments in Cases: fruit against Germany (Beschwerde-Nr. 425/03) and Schüth v. Germany (Application no . 1620/03)

summary of the facts

Both cases involved the termination of employment by a religious employer because of an extramarital relationship of the employee. The Court dealt first with the dismissal of church employee because of actions attributable to the private lives.

Michael Obst is a German national, born in 1959, and lives in Neu-Anspach. He grew up a Mormon and married in 1980 in accordance with this belief. After a series of activities in the Mormon Church, he in 1986 became the area director of public relations for Europe. In early December 1993, he turned to ask for advice to its competent minister and confided to him that going downhill for years with his marriage and he an extramarital relationship with another Woman had, following the advice of the pastor, he finally spoke with his superiors on the matter. This few days later informed him about his dismissal. Mr. Fruit was later excommunicated in an internal disciplinary proceedings.

Mr. Fruit complained before the Labour Court in Frankfurt against his dismissal, the Court by order of January 1995 as invalid. That court upheld the decision Hessen first raised it to the Federal Labour Court, however, and remanded the case. According to the Federal Labour Court Lord had violated the fruit resulting from his employment duties. The court also referred on a policy decision by the Constitutional Court of 4 June 1985 Effectiveness of church staff layoffs due to injury of loyalty obligations. Religious employers would have the right to regulate labor relations independently, labor courts are, however, the religious and moral standards of the churches only to the extent that these are in inconsistent with the principles of law were in conflict. Demanded by the Mormon church obligation to marital fidelity is contrary to the law but not because of marriage in the German Basic Law also play a prominent role to come. The dismissal was for the church have been necessary to preserve its credibility, which had been given by Mr Obst responsibilities as area director of public relations for Europe in question. Moreover, the church was not required to issue a prior warning, as did Lord fruit in view of his long career working for the Church of the seriousness of his misconduct must be aware of. After the remand the Regional Labour Court dismissed the complaint from Mr Obst in January 1998.

was an appeal to the Federal Labour Court without success. In June 2002 the Federal Constitutional Court ruled, citing its landmark decision of 4 June 1985, not the constitutional complaint Mr. Obst's assume for a decision.

Schüth Bernhard is a German National, born in 1957, and lives in Essen. It was the mid-1980s, the Catholic parish of St. Lambertus in Essen hired as organist and choir director, as he separated from his wife in 1994. From 1995 on he lived with his new partner. After his children in kindergarten had said that Mr. Schüth be a father again, would the dean of the congregation led in July 1997 for an interview with him. A few days later, said the congregation his resignation, with effect from April 1998 because he violated the constitution of the Catholic Church for the church service as part of church work conditions. As he closed the outside of him Marriage to another woman lived, he was expecting a child, he had committed not only adultery, but also guilty of bigamy.

Mr. Schüth complained before the Labour Court against eating his dismissal, the Court by order of December 1997 as invalid. That court Dusseldorf upheld the decision at first, but the Federal Labor Court reversed the decision and remanded the case. According to the Federal Labour Court would have the country's labor court must consult the Dean of the municipality to determine whether he had tried in person, Mr. Schüth terminating his extramarital relationship to move. As with fruit, the court referred to the landmark ruling of the Constitutional Court, emphasizing that a demand by the Catholic Church is not required to conjugal fidelity of the law disagree. After

had referred back to the State Labor Court dismissed Mr Schüth off in February 2000. It found that maintaining the dean in the face of the Lord's determination Schüth, his new relationship, I can reasonably assume that a warning was unnecessary. The Court considers that the community does not have Mr. Schüth without losing all credibility deal further, as its activities in close connection with the church Mission had stood.

was an appeal to the Federal Labour Court without success. In July 2002 the Federal Constitutional Court ruled, citing its landmark decision of 4 June 1985, the Constitution does not appeal the decision to accept Mr Schüth.

complaint procedure and composition of the Court

Relying on Article 8 both complainants complained about the refusal of the German labor courts to set aside her dismissal.

The complaint Mr. Obst was on 2 January 2003, filed the complaint Mr Schüth on 11 January 2003 at the European Court of Human Rights. In the case of fruit was the Mormon church, in the case Schüth the Catholic Diocese of food from a third party a written statement.

Judgement was given by a Chamber of seven judges, which is composed as follows:

Peer Lorenzen (Denmark), President, Renate Jaeger (Germany), Rait Maruste (Estonia), Isabelle Berro-Lefèvre (Monaco), Mirjana Lazarova Trajkovska ("the former Yugoslav Republic of Macedonia"), Zdravka Kalaydjieva (Bulgaria), Ganna Yudkivska (Ukraine), judges, and Claudia Westerdiek, Section Chancellor.

decision of the Court

In both cases, the Court was required to act on whether the German labor courts made a balance between the applicants' right to respect for his private and family life under Article 8 on the one hand, and the Convention rights of the Catholic Church and the Mormon church the other hand, the complainants had provided adequate protection against dismissal. The Court stressed that the autonomy of religious communities against undue government interference under Article 9 (freedom of religion) and Article 11 (freedom of association) was protected.

with his work for justice and a fuller review of their decisions have the Constitutional Court of Germany in principle positive Obligation of the state against plaintiffs in employment law disputes. In the two cases, the complainant had lodged a complaint before an employment tribunal which was empowered to decide on the effectiveness of its termination under state labor law in the light of the Church's labor law. In both cases, the Federal Labour Court had come to the conclusion that non of the Mormon Church and the Catholic Church called for the legal obligation of marital fidelity contrary.

The Court noted that the German labor courts in the case of fruit taken into account all relevant aspects of the case and a careful balancing of interests had made. They had found that the Mormon Church was added only be in a position to terminate Mr. fruits due to adultery, that he had informed the church about its own initiative. According to the German courts was his dismissal of a necessary action immediately to preserve the credibility of the Church, highlighted in particular in view of his position. Furthermore, the courts had been received as to why the church was not required to issue a prior warning, and they stressed that the damage to Mr. Fruit of the termination, among other things, given his relatively young age was limited.

The fact that the German courts had the interests of the Mormon Church after careful consideration given more weight than those of Mr. Obst, was not in conflict with the Convention. The Court found the conclusion of the German courts to understand that the Mormon Church had imposed on Mr. Fruit no unacceptable obligations. Since he was raised as a Mormon, he was complaining about was aware or should it be, should had the importance of marital fidelity to his employer and that his extramarital relationship is incompatible with the increased loyalty duties as Director of Public Relations for Europe was.

In contrast, perceived the Court in the case Schüth, it's that the country's labor court was limited to determine that he was organist and choir director, not in the group of people fell to their termination was in the case of serious misconduct, necessarily, such as those in pastoral and clerical occupations and in management positions, but that its activity was still so closely associated with the mission of the Catholic Church that they employ him could not further without losing all credibility. That court had not elaborated this argument, but seemed merely the opinion of the Church's employer to have played in this matter.

addition had the labor courts, the de facto family life Lord Schüth or protection is not even mentioned. The interests of the Church's employer had not therefore be weighed against Mr Schüth right to respect for his private and family life, but only against his interest to keep his job. A more thorough examination would be in balancing the competing rights and interests have been appropriate.



Although the Court recognized that Mr. Schüth, as he had signed his contract, made in relation to the Catholic Church was a loyalty obligation, which restricted his right to respect for private life, to some extent. His signing of the contract could not be understood as a clear promise to lead in case of separation or divorce abstemious life. The German labor courts had hardly taken into account that there had been no media coverage of his case and that, after 14 years of serving the community, the position of the Catholic Church had apparently not been challenged.

The fact that an employer terminated by a church employee had only limited opportunities to find a new job was, in the opinion of the Court is of particular importance. This was especially true if the dismissed employee had a specific skill that will enable him difficult or even impossible, to find a new job outside the church, as in the case of Mr Schüth, now pursued a part-time employment in a Protestant church. In this context, the Court noted that legislation would provide for the Evangelical Church for the employment of members of the Church that they could be employed only in exceptional cases and only in the context of additional employment.

The Court held that the balancing of the German labor courts between the rights of the church where Mr Schüth and employer had not been made in accordance with the Convention.

The Court reached a unanimous to the conclusion that the windfall was no violation of Article 8 was present and that if Schüth a violation of Article 8 was present.

Just satisfaction

The Court held that the question of the application of Article 41 (just satisfaction) in the case Schüth not yet ripe for a decision was and will be decided at a later date would be. The parties have an opportunity to get within three months following delivery of opinion on a related agreement.


(Press release from the Registrar of the ECHR of 09.23.2010)

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LAG Bremen: Termination for "Russian accent" justify damages - action it possible without a dismissal action

§ 2 paragraph 4 AGG, which solely for the dismissal Provisions for general and special protection against dismissal is valid, according to a compensation claim. § 15 para 2 of AGG of contract. workers must nevertheless not initially against the discriminatory termination claim before they can make a compensation claim under the AGG.

The facts:
The applicant, a German national who speaks with a Russian accent was an employee of the defendant carrier since 20.01.2009 as a clerk.

Even during the six month trial period the applicant, there was a conversation with the new manager of the defendant. This suggested that the customer the defendant because of the Russian accent would scare the applicant. The defendant can not afford to staff to deal with stress. The clients would think, "What a shit-load, in which only foreigners to be employed." Since that conversation

could no longer service the applicant on the phone. Two weeks after the interview, the defendant, the probation termination of employment with the applicant said.

By this action, the applicant asked for compensation under the AGG. They had been discriminated against because of their ethnic origin. The employment tribunal said its compensation in the amount of three gross monthly salaries. It against that of the defendant's appeal was unsuccessful. The LAG was, however, because of fundamental importance to the matter an appeal to the BAG.

The reasons: The applicant can
by the defendant for compensation according to § 15 paragraph 2 of AGG in the amount three times their monthly earnings call. The termination is not because of lack of language skills of the applicant will be, but for her - because of the accent audible - the source from the Russian-speaking world. This constitutes an impermissible discrimination based on ethnic origin.

The compensation is not in sec. § 2 para 4 AGG excluded. How is this exclusive arrangement is understood, is indeed controversial. Wording and purpose of the provision say but why only to review the effectiveness of a termination should be excluded under the AGG, but not the assertion of claims for breach of personal rights. Therefore, in cases of discriminatory dismissal without bringing an action for dismissal, compensation in accordance with § 15 para 2 AGG required.

The Labour Court has fixed the amount of compensation is also right to three months' salary. be taken into account was that the comments of the manager offensive character had, and the applicant was thereby reduced in a special way. Therefore, compensation was fixed, which was a sensible response to this discrimination. Because of the severity of discrimination against a compensation amounting to three months earnings was also not prevent the applicant does not challenge the trial period of one month notice could resist.
(LAG Bremen 29.06.2010, 1 Sat 29/10)

Note: To welcome
is that the LAG Bremen made it clear once again that the so-called "exclusivity arrangement" of the controversial and probably illegal europe § 2 para AGG 4 the assertion of claims does not preclude.
welcomed the "clear statement" of the court by which the discriminatory comments of the manager rightly be described as "insulting".
But why the applicant will either only 3 months' salary for pain claim did - then she may advise not good - or did, but granted the court by itself so little - then, in disregard of European law - is in each of the two alternatives angrily
because the EU policies that are implemented by the AGG require the Member States, it clearly for cases of discrimination "effective and dissuasive provide for penalties " - to that standard, the courts are bound
It would therefore in this case, an amount must be ejected, who does the defendant company really hurt -. from this requirement, only 3 months' salary can not be assumed - not understandable, therefore, remains why the LAG calls this yet even as a "sensible response".
is informed by the court of the dismissal to be void as declared unlawful, because that it does not matter whether the applicant was still in the probationary period and employment protection law for them was not provided the trial period no longer than 6 months and was the termination before which was:
terminations that violate legal prohibitions, namely gem. § 134 BGB void.
not be revealed, unfortunately, not whether the plaintiff in the case of job loss in addition to pain and suffering and its rightful claim to compensation for their material damage gem. § 15 para 1 AGG has argued:
If they should have actually lost their dArbeitsplatz result, this claim covers approximately the content of their result in the loss for at least 5 years, as statistically considered a labor contract in Germany on average lasts so long.
addition, the damage claim would of course all include other material costs of job loss, such as new application costs, interest, etc. MRP