Germany Update: New obstacles to collective redundancy notices – “target” information as “must” information

The Landesarbeitsgericht Hessen (LAG Hessen) has stated in its decision of 25.06.2021 that dismissals due to missing “target” information in the associated collective dismissal notice can be ineffective. Until now, this only applied in the absence of information provided for by law as a “must”.

Background

If intended redundancies exceed quantitatively defined thresholds, the employer must notify the Employment Agency of this in the context of a collective dismissal notification. This applies, for example, if more than 5 employees are to be dismissed in companies with usually more than 20 and less than 60 employees. According to the corresponding legal differentiation, the advertisement must contain so-called “must” and “target” information.

The ‘must’ information shall include information on:

• the name of the employer,
• the registered office and type of business
• the reasons for the planned redundancies,
• the number and occupational groups of workers to be made redundant and those normally employed,
• the period during which the redundancies are to be made, and
• the criteria laid down for the selection of workers to be made redundant.

The “target” information includes employee-related information such as

• Sex
• Age
• Occupation and
• Nationality of the workers to be made redundant.

According to the previous case law, the existence of the “target” information was not a requirement for a proper collective dismissal notice. The LAG Hessen has now taken the opposite view in its decision.

Decision

Finally, the parties are still arguing in the appeal instance about the effectiveness of an ordinary dismissal pronounced for operational reasons. The defendant issued dismissals for operational reasons to 17 employees employed in the company in the period from 18.06.2019 to 18.07.2019. The quantity of dismissed employees fulfilled the conditions for collective redundancies within the meaning of § 17 of the Dismissal Protection Act (KSchG). The defendant filed a collective dismissal notice with the Employment Agency. The advertisement contained the “must” information according to § 17 Abs.3 S.4 KSchG, but not the “Soll” information according to § 17 Abs.3 S.5 KSchG. A repetition of the transmission of this information was also omitted until the respective employees received the dismissals. The court considered the dismissal to be invalid because the collective dismissal notice did not meet the requirements of the KSchG. § 17 Abs.3 S.4 and 5 KSchG are to be interpreted in accordance with the Directive against the background of EU law requirements. The directive to be used does not distinguish between ‘debit’ and ‘must’ information. Both the “target” and “must” information referred to in § 17 (3) KSchG are useful within the meaning of the Directive. In the Court’s view, information is either useful for the placement of the workers to be dismissed and therefore necessary for the effectiveness of the notification or it is superfluous and therefore dispensable. “Target” and “must” information must therefore be considered uniformly. Violations of the “target” information therefore also lead to the defectiveness of the collective dismissal notice and thus to the ineffectiveness of the termination.

Practical instructions

The decision of the LAG Hessen is not yet final. Until a final clarification is reached by the Federal Labour Court, the decision entails a considerable degree of legal uncertainty. Employers are well-advised to treat the “target” information as “must” information in the context of the collective redundancy procedure. This results in a considerable additional effort in restructuring, as appropriate information often has to be obtained first. It should be noted that the LAG Hessen only requires the employer to provide such information as is also possible for him. However, it also obliges employers to investigate if any “target” information is unknown to them. Employers should take this obligation to investigate seriously, as they must demonstrate and prove in court proceedings that they have complied with these obligations.

By Steffen Linden, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact germany@transatlanticlaw.com

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