The subject of legal regulation in employment law is the employment relationship — that is, the relationship that arises between an employee and an employer when the employee performs certain work in accordance with their profession, qualifications, and position, in exchange for wages agreed upon by the parties.
Employment relationships, generally based on a written employment contract, are always mutual and bilateral. Consequently, both employer and employee have certain rights and obligations, and each is entitled to require the other party to the employment relationship to fulfill the corresponding duties under the employment contract.
From our firm's practice
Case law on labor disputes in Germany regularly clarifies how the statutory provisions are applied — it's important to factor in current rulings when arguing a client's position.
What's more, even a person who submits a résumé to a company hoping to fill a vacant position at the employer's business has the right to have their application considered on equal terms with other candidates — and a breach of that equal treatment carries negative consequences for the employer.
The situations requiring legal resolution that an employee or a candidate for a given position may encounter are highly varied, which is why our law firm has prepared legal explanations, based on current case law, of the most typical cases in the field of employment law.
1. Discrimination against job applicants and employees
Employers looking to hire a new staff member set certain requirements a candidate must meet. These requirements may relate to professional qualities (a certain level of education, knowledge, experience, and so on) as well as personal ones (communication skills, a sense of responsibility, resilience under stress, and so forth). Some employers, however, try to limit their risk by narrowing the pool of candidates through requirements that are, in substance, discriminatory.
For instance, a Ukrainian-born man who had lived in Germany for many years decided to submit his résumé to a company looking for a customer support employee. Among other requirements, the listing stated that German had to be the candidate's native language. In his résumé, the candidate noted that he was fluent in German, but that his native language was Russian. A few weeks later, he contacted the employer's office to ask why he hadn't been invited for an interview, and was told that the position had been filled very quickly. He noticed, however, that the vacancy had actually remained open for quite a long time, and concluded that he hadn't been invited to interview because German wasn't his native language. Considering the employer's requirement discriminatory, since candidate selection had also taken the employer's ethnic preferences into account, he took the matter to court, seeking 3,300 euros in damages from the employer. The court ruled that, since a native language is understood to be the language a child acquired before any formal instruction — something closely tied to ethnic origin — the employer's requirement was indeed discriminatory, and the applicant's claim was upheld.
Not every requirement an employer applies is stated openly, however. Interviewers weigh a great many criteria without making them public. For example, during an interview itself, a candidate might be asked about their marital status and/or whether they have children (information that a résumé is not required to include), since employers are often reluctant to grant staff the extra leave and benefits that can come with caring for a child.
A candidate for an accounting position ran into exactly this kind of situation: after her interview she was turned down, and on the résumé sent back to her she found a note, handwritten by a company employee, stating that her child was seven years old. She had only mentioned that fact during the interview itself, which meant it had clearly mattered enough to the employer to be specifically noted — suggesting a reluctance to hire an employee with a young child. She therefore filed a claim under §3(1) of Germany's General Equal Treatment Act (German: Allgemeines Gleichbehandlungsgesetz), alleging sex discrimination linked to motherhood. Here too, the court sided with the claimant, ordering the employer to pay her more than 6,000 euros.
Discriminatory conduct by an employer can also surface after an employment contract has already been signed. In one such case, an employee at a shoe factory discovered unfair pay disparities between male and female staff. According to the information she obtained, every female employee was paid 30% less than male colleagues in equivalent positions. She filed a claim seeking to recover the pay difference for three years of work, together with corresponding damages. The employer, for its part, argued that it had never concealed the pay gap between male and female staff — meaning employees had agreed to those terms upon hiring — and that it therefore should not be held liable for discriminatory working conditions. The court nonetheless sided with the shoe-factory employee, ruling that disclosing discriminatory conditions does not exempt an employer from liability for creating them, and ordered the employer to pay the employee 20,000 euros.
2. An employee's personal sphere
Employers are generally interested in monitoring workplace processes and keeping an eye on their staff in order to make more effective use of working time. There are, however, certain boundaries set by law that an employer may not cross.
For example, an employer installing surveillance cameras at employees' individual workstations is unlawful, since it infringes the personal rights employees are guaranteed under various German statutes.
It is likewise impermissible for a manager to read an employee's personal correspondence or check the browsing history on the work computer's browser.
In cases like these, however, courts weigh both the employee's interests and the employer's. For example, if the employment contract or the company's internal work rules state that an employee may use the work internet for personal purposes only during the lunch break, an employer with sufficient grounds to believe the employee is breaching that rule may check personal correspondence or review browser history in order to gather evidence.
Furthermore, where there is sabotage or theft on the employer's premises, the employer's interest in identifying which employee is responsible for the wrongdoing outweighs employees' interest in shielding their personal sphere from outside intrusion — meaning that installing video surveillance in the relevant areas will not amount to a serious violation of employees' personal rights. What's more, evidence obtained this way can be accepted by a court as sufficient, and dismissing an employee for using working time for personal purposes can be lawful.
As case law shows, however, the grounds for this kind of intrusion by an employer into an employee's personal sphere must be very weighty, and the evidence must not be obtainable by any less intrusive means.
3. Proportionality between an employee's misconduct and the penalty imposed
As already mentioned, the core rights and obligations of employees and employers are set out in the employment contract. Beyond the contract, however, there may also be internal work rules, compliance with which is likewise an obligation on both sides of the employment relationship. If an employee breaches the established rules or fails to carry out a duty, the employer may impose certain disciplinary measures depending on the severity of the misconduct.
The employer must assess the proportionality of any disciplinary measure on a case-by-case basis, and if the employee disputes the measure imposed, the matter is subject to review by a court.
In 2015, for example, a court ruled that an employee's 15-minute lateness to work could not justify a written warning from the employer that would then go into the employee's personnel file, since such a disciplinary measure was disproportionate to the breach of internal work rules involved. A written warning placed in an employee's file can become grounds for a later dismissal linked to the employee's conduct at work; such a measure is reserved for particularly serious or repeated breaches of workplace discipline, whereas a 15-minute lateness can be addressed with no more than a verbal remark from the employer. As a result, the court ordered the written warning removed from the employee's personnel file.
The real-world examples above, drawn from cases heard by German courts, show just how important it is for an employee to be able to properly defend their legal position. For that reason, we recommend seeking timely legal advice from an experienced lawyer who can explain your rights and obligations and help you protect your interests effectively.
All rights reserved. Copying or republishing this article requires a link to the original source.
