Mass redundancy notifications – “should information” remains voluntary

Judgment of the Federal Labour Court of 19 May 2022 in Case No. 2 AZR 467/21

The failure to provide target numbers in accordance with § 17 (3) 5th sentence of the Act against unfair dismissal (Kündigungsschutzgesetz, KSchG) does not make the mass redundancy notice invalid.

Facts of the case

The employer regularly had more than 20 employees working for its business. In the period between 18 June and 18 July 2019, the employer dismissed 17 of these employees. The employee claimed that the dismissal is ineffective because the mass redundancy notification failed to provide all of the information that should be provided in accordance with § 17 (3) 5th sentence of the KSchG.

The judgment

The Regional Labour Court of Hessen (Landesgericht Hessen, LAG) held that a mass redundancy notice is ineffective if it does not contain all of the information that should be included. The Court based its decision on an interpretation of the KSchG in line with the EU Collective Redundancy Directive, which requires all relevant information to be provided. This includes information about the sex, age, occupation, and nationality of the employees to be dismissed – the so-called should information – in accordance with § 17 (3) 5th sentence of the KSchG. The LAG Hessen assumed that it would be possible to interpret § 17 (3) 5th sentence of the KSchG in line with the Directive; such an interpretation would be consistent with the wording, the hierarchy of norms, and the will of the legislator as evident from the legislative history. On appeal, the BAG annulled the judgment and remitted the case back to the lower court. The BAG clarified that the failure to provide the so-called “should information” in accordance with § 17 (3) 5th sentence of the KSchG does not make the mass redundancy notification ineffective.

According to the clear intentions of the legislature, failure to provide the should information does not make the mass redundancy notification invalid. National courts cannot use an interpret the law in line with the EU Directive to break with this legislative decision. Such an interpretation is also not advisable. The case law of the ECJ has clarified that the information in § 17 (3) 5th sentence of the KSchG does not have to be contained in the notification, even under the EU Directive.

Consequences for practice

Employers can relax, at least temporarily. The Court decided not to establish a new hurdle for reporting mass redundancies.

Practical tip

Despite the judgment of the BAG, mass redundancy notifications remain a stumbling block for effective notices of dismissal. In the past, courts constantly established new requirements for the notification. Employers should carefully check whether a mass redundancy notification can be avoided, such as by remaining below the thresholds or spreading the redundancy notices over a 30-day period (e.g., with multiple waves of dismissals or the use of a cleverly staggered voluntary programme). More extensive measures will require early planning before negotiations on the reconciliation of employer and employee interests start.

Dr Anne Dziuba