Dusseldorf, 26 June 2024 – The international law firm ADVANT Beiten has provided interdisciplinary advice to Aesculap AG, a subsidiary of the B. Braun group seated in Melsungen, Germany, on the sale of its…
The corona pandemic confronts the whole world with major challenges. Companies are also affected in terms of organisation, personnel and above all financially. With the right labour law advice, start-ups in particular can save money. Our experts present their 10 helpful suggestions:
According to section 106 sentence 1 German Trade, Commerce and Industry Regulation Act (GewO), employers have the right to determine the content, place and time of work performance at their own reasonable discretion. Along with the right of direction, the employer also has a duty of care and to avert dangers to its employees. Insofar as there are no other regulations relevant to the employment relationship, the right of direction also includes the implementation of the corona hygiene concept drawn up by the employer, such as the wearing of protective masks, the disinfection of hands, the observance of physical distancing, the prohibition of physical meetings, etc.
Employees who violate the corona hygiene concept set up by the employer are acting in breach of their duties. The employer can use the usual instruments of labour law to impose sanctions, such as repeated explicit instructions to comply with the hygiene concept, a warning or ordinary termination for conduct and/or extraordinary dismissal.
Since the employee e.g. not wearing a mask violates the hygiene concept and thus offers its work performance in a way that is not fit for work, the employer would also be entitled to release the employee unpaid for this period.
Financially, it may be worthwhile to have more staff working outside a rented office, thus reducing the rental costs for the start-up. Legally, a distinction is made between the terms telework, home office and mobile working, with a difference both in terms of location (telework and home office: private residence; mobile working: any place outside the premises) and in terms of set-up costs (telework: fixed workplace; home office and mobile working: no fixed workplace).
In Germany there is not (yet) a legal entitlement of employees to a home office. Nor is there - at least in the opinion of the Regional Labour Court of Berlin-Brandenburg - any right on the part of the employer to instruct employees to work from home, if the place of work is contractually specified. However, crisis periods such as the corona pandemic are not covered by this rule. "Normal operation" would therefore require a legal basis. This, too, can save a lot of money with regard to the "issue of cost assumption" (e.g. pro rata assumption of employees' rental costs).
A rapid savings effect can be achieved by eliminating gratuities or other one-off payments. This requires, however, that a so-called reservation of voluntariness or revocation has been agreed in the employment agreements.
In the case of an (effective) reservation of the voluntary nature, the special payment can be suspended for the future. The reservation of the voluntary nature of the payment prevents the employees' claim for payment from arising. The prerequisite is that the employer must point out each time this special payment is granted that it is voluntary and that no legal claim arises from repeated payments.
In the case of a reservation of revocation, the employer must declare the revocation in good time before the due payment is made. The revocation must be made for the reasons stated in the reservation of revocation and must be at the employer's reasonable discretion.
Should Tip 3 not be feasible because the relevant requirements are not met or if a unilateral reduction of special payments is not desired with regard to employee motivation, it is also possible to postpone the due date of the special payment in agreement with the employees. This will spare liquidity and can help to bridge shortages.
In the short term, money can be saved by a – mutually agreed – salary waiver. A mere salary waiver saves money but also leads to a lower motivation and willingness to perform on the part of the employees. With a so-called debtor warrant, employees keep the incentive to perform well.
Salary waiver with a debtor warrant is an option that is often neglected, if not forgotten. Employees waive part of their remuneration in order to maintain the employer's liquidity. This way, employees also secure their own jobs. If the economic situation has improved within a certain period of time or on a certain date, the employees will be reimbursed the waived remuneration or part of it.
Should it become apparent that further measures need to be taken, it need not always be a wave of dismissals. There are also alternatives that can reduce costs.
One possibility is to let fixed-term employment agreements expire. This has the advantage that there is no need to give notice and the employment relationship ends automatically when the fixed-term contract expires – at least if the fixed-term contract has been effectively agreed.
An extension of short-time work beyond the period initially forecast and agreed requires a regular supplement to the employment agreement with the employees affected by short-time work.
The complete and proper documentation of the work actually performed is also of great importance as the basis for the application for short-time allowance for the respective month. The incorrect provision of data when applying for short-time allowance generally not only represents a serious breach of duty for the person responsible but can also lead to comprehensive claims by the Federal Employment Agency (Bundesagentur für Arbeit) against the company.
It may turn out that the predicted loss of employment is not only temporary but permanent. In this case, the question arises as to whether dismissals are even possible despite short-time work.
The answer is: YES. Dismissals are also possible during short-time work, not only for personal and behavioural reasons, but also for operational reasons. However, special principles apply here.
A characteristic feature of short-time work is the temporary loss of employment. A dismissal for operational reasons, on the other hand, presupposes a permanent loss of employment. If short-time work is performed in a company, this is an initial argument against a permanent reduction in the need for employment. A merely temporary lack of work cannot justify a dismissal for operational reasons. Start-ups should thus examine and document the extent to which the forecast has changed between the time when the decision was made to introduce short-time work and the time when it was decided to announce layoffs.
If the employee affected by the termination is still on short-time work at the time of the termination, the entitlement to short-time allowance ends when the termination takes effect.
Insofar as the German Dismissal Protection Act (KSchG) applies, it may make sense to make use of the simplified options for giving notice of termination during the probationary period. Hence, start-ups should keep an eye on expiring probationary periods.
Employment during proceedings, in particular to avert the judicial execution of an enforceable general claim (titulierter allgemeiner Anspruch) for further employment by the first instance, is not an employment relationship, not even a de facto employment relationship. The employee only receives remuneration for the work actually performed. If it is subsequently established that the termination is effective, the employer may retain the remuneration for the work performed. However, no other claims arise from an employment relationship, such as holiday or continued remuneration in the event of illness or continued remuneration on public holidays. This means that the basic principle of "no work, no pay" applies without exception to such employment during proceedings.
Dr Michaela Felisiak / Dr Erik Schmid
