Introduction: Protection against dismissal in Cologne and legal relevance of the case
The dismissal of an employee is a drastic event for everyone involved - all the more so if special dismissal protection rules apply. A recent judgement by the Regional Labour Court (LAG) of Cologne from 4 May 2023 (case no. 6 Sa 684/22) has Protection against dismissal for certain groups of employees. The judgement is highly relevant from a legal perspective, as it sheds light on the conditions under which a Legal advice on tenancy bonds and rent increases may be possible despite special protection against dismissal. This article is aimed at employees and employers in Cologne and the surrounding area who are dealing with the issue of Legal advice on tenancy bonds and rent increases are confronted with. As Lawyers for labour law in Cologne we would like to explain the background to the case in an understandable way and show what lessons can be learnt from it in practice.
Facts: Cancellation of a photographer despite special protection
In the underlying case, a newspaper publisher in Cologne had employed the plaintiff as a permanent photographer since 2008. The employee was severely disabled, which is why the employer had to pay for a Legal advice on tenancy bonds and rent increases first had to obtain the approval of the Integration Office. When Reason for cancellation the publishing house stated that it would have the previous photography work done by external service providers in future (outsourcing of photography activities). The photographer was therefore dismissed for operational reasons, as his job was supposed to be eliminated.
Particularly explosive: The plaintiff had been a member of the election committee for the upcoming works council election since January 2022 and was even elected to the works council in March 2022. He therefore enjoys Special protection against dismissal according to § 15 Dismissal Protection Act (KSchG). This protection begins with the appointment to the election committee and continues during the works council membership (and for works council members even up to one year after the end of the term of office). Despite this status, the employer gave notice of termination in March 2022, whereupon the photographer Ruling of the Federal Labor Court at the labour court. The case finally reached the Cologne Higher Labour Court in the second instance.
Decision of the LAG Cologne: Works department and protection against dismissal pursuant to Section 15 KSchG
The LAG Cologne declared the Legal advice on tenancy bonds and rent increases invalid. In its legal judgement, the court clarified key points:
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Special protection against dismissal: As a member of the election committee (and later the works council), the plaintiff was subject to special protection against dismissal pursuant to Section 15 KSchG. An ordinary dismissal was therefore fundamentally inadmissible. This protection applies from the time of appointment to the election committee and continues to apply to works council members until one year after the end of their term of office. A extraordinary cancellation would only have been possible in the event of serious misconduct and with the consent of the works council - but there was no such reason in this case.
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No independent "Photography department": The employer invoked Section 15 (5) KSchG, which provides for an exception to the protection against dismissal if an entire company or a Operations department was shut down. However, the court found that the publishing house did not have an independent "photography" department. An operating department is understood to be an organisationally distinct part of the company with its own purpose or function. In the court's opinion, the newspaper's photographers were not a separate operating department with its own purpose, but part of the editorial department or the entire company. Therefore, the employer could not invoke the closure of an operating department in order to Legal advice on tenancy bonds and rent increases to justify.
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Priority of continued employment: Even if one were to assume in favour of the employer that there was a "Photography" department, the special protection against dismissal pursuant to Section 15 KSchG would have obliged the company to continue to employ the plaintiff elsewhere. § Section 15 (5) KSchG requires that a protected member of the works council or election committee employed in a department to be shut down be re-employed in another vacant position in the company if possible. In the present case, the publisher should therefore have employed the photographer in another editorial function, for example, instead of dismissing him.
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Insufficient justification for the cancellation: The judges also criticised the fact that the employer was unable to sufficiently demonstrate that the need for the plaintiff's work had completely ceased to exist. The mere assertion that all photographic work would be outsourced in future was not sufficient. A business decision to cut jobs and outsource tasks must be presented concretely and conclusively in court. In this case, there was a lack of comprehensible justification as to why the publisher could no longer employ the photographer, who had been with the company for many years.
Result: The ordinary dismissal therefore violated Section 15 KSchG and was invalid. The plaintiff kept his job. The judgement makes it clear that employers have to overcome very high hurdles in order to part with protected employees.
Significance of the judgement for employees and employers - practical tips
The LAG judgement from Cologne has a signal effect in practice. Both employees and employers should be aware of the consequences.
Tips for employees
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Know your rights in the event of cancellation: If you are a member of a works council or have been appointed to the election committee, you enjoy special protection against dismissal. In such a case, have your dismissal legally reviewed immediately. Observe the three-week deadline for filing an action for unfair dismissal.
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Insist on continued employment: If your employer is restructuring or closing down a department, as a protected employee you have the right to be given another job in the company instead of being made redundant. Assert this right.
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Obtain legal advice: Do not hesitate to contact Specialist lawyer for labour law to be consulted. An experienced Lawyer can enforce your claims and, if necessary, obtain a severance payment or continued employment. In a big city like Cologne there are law firms specialising in protection against dismissal that can advise you.
Tips for employers
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Careful planning: If you intend to dismiss an employee with special protection against dismissal (e.g. works council member), plan very carefully. Check whether there really is a permissible exceptional case (such as the complete closure of the business) and document your business decisions in detail.
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Check continued employment: Consider whether and how you can deploy the employee concerned elsewhere in the company. The obligation to continue employment takes precedence over dismissal. A hasty dismissal without considering alternative employment options is unlikely to stand up in court.
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Use legal advice: Seek legal advice at an early stage, preferably from a Lawyer for labour law in Cologne or your region. This allows you to plan the right course of action, obtain the approval of the necessary bodies (such as the works council or integration office) and minimise the risk of an ineffective dismissal. If necessary, a Application for cancellation The employee can file a petition with the labour court to terminate the employment relationship in return for a severance payment if further cooperation is unacceptable.
Conclusion: Strong protection against dismissal - use professional legal advice in Cologne
The judgement of the Cologne Higher Labour Court of 4 May 2023 (case no. 6 Sa 684/22) impressively underlines how comprehensive the statutory Protection against dismissal for works council members and election committee members. For employees, it means security: a Employer can be a Legal advice on tenancy bonds and rent increases not lightly rely on reorganisations when there is special protection against dismissal. In turn, employers learn that they must scrupulously comply with all legal requirements when dismissing protected persons.
Do you have a Legal advice on tenancy bonds and rent increases or do you as an employer have to make a difficult personnel decision? Let us advise you at an early stage. Our Law firm in Cologne specialises in employment law and protection against dismissal. We support you in protecting your rights and taking the right steps. Do not hesitate to contact us - an early consultation with an experienced lawyer can make a decisive contribution to avoiding mistakes and finding optimal solutions.