This is a contribution to the European Employment Law Update -
December 2012. Please find the other contributions by country in
the menu to the left.
An employee is temporarily bound by the employer's
unjustified instructions until a final court decision determines
that the instruction was in fact unjustified and hence
- Impact date: 22 February 2012
The Federal Labour Court (Bundesarbeitsgericht) has decided,
contrary to existing case-law, that an employee cannot just defy
unjustified instructions given by the employer. Instead, the
employee is obliged to take legal action against the employer's
In the meantime, the employee has to follow the employer's
unjustified instructions, until the labour court decides by final
judgement that the instruction was unjustified and therefore
With this decision the Federal Labour Court has deviated from
established case-law in Germany, namely that an employee is not
bound by unjustified and invalid instructions given by the
This change in case-law can lead to severe consequences for the
employees. According to the new ruling of the Fifth Chamber
of the Federal Labour Court, an employee could face the risk of
receiving a written warning or even a dismissal if he refuses to
follow the employer's unjustified instructions.
(BAG, decision dated 22/02/2012 – 5 AZR 249/11)
The conclusion of a fixed-term employment contract can
be invalid due to abuse of the law in spite of a given justified
reason for the limitation of the employment contract.
- Impact date: 18 July 2012
The Federal Labour Court has confirmed its previous case-law
that the conclusion of a fixed-term employment contract is, in
principle, justified if the employee is hired to fill in for
This is the case even if the parties agree upon several
fixed-term employment contracts in a row due to the permanent need
for a substitute.
However, the Federal Labour Court has held that a limitation of
an employment contract can be invalid in exceptional cases (despite
an exception contained in the Part-Time and Limited Term Employment
Act if the agreed limitation has to be considered an abuse of
The Federal Labour Court clarified (in two parallel
such an abuse of law can be assumed if the parties concluded
thirteen fixed-term em-ployment contracts in a row during a period
of eleven years; whereas
the conclusion of four limited employment contracts in a row for
a duration of altogether more than seven years cannot be considered
The dismissal of a public service employee can be based
on off-duty activities for the NPD (National Democratic Party of
- Impact date: 6 September 2012
The Federal Labour Court has decided that public service
employees have to have a certain level of constitutional loyalty
even if they are not subject to an increased duty of loyalty like
civil servants. The membership in or the activities for the
National Democratic Party of Germany are no valid grounds for a
dismissal as such, even assuming anti-constitutional attitudes of
the organisation. Public service employees are, however, not
allowed to call on the elimination of the state, its constitution
or its institutions or to insult the state even if the employee
performs such activities outside of the work place.
(BAG, decision dated 06/09/2012 – 2 AZR 372/11)
New regulations for so-called
- Impact date: 1 January 2013
The German Parliament has decided for new rules that provide for
a higher income limit for so-called mini-jobbers. At present, the
remuneration from a low-income job is tax-free provided that the
employee's monthly salary does not exceed a maximum limit of
EUR 400.00. The German Parliament decided to increase this maximum
income limit from EUR 400.00 to EUR 450.00 with effect as of 1
This change of law will lead to a further increase of the number
of low-income jobs. At present, there are over 7 million employees
in minor employments with a maximum income of EUR 400.00.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
April 2015 saw the reshaping of family-friendly leave with the birth of Shared Parental Leave (SPL). Can employers offer enhanced contractual pay to mothers/primary adopters but not to fathers/partners?
In an eagerly awaited decision, the Court of Appeal ruled earlier today that creditors cannot access a bankrupt's pension benefits which have not come in payment.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).