As of September 22, 2023, changes will come into effect that concern the enhancement of protection for employees under special protection.
The following individuals will gain greater protection from dismissal with notice or immediate termination:
- pregnant women,
- parents on maternity, parental, paternal, or caregiving leaves,
- pre-retirement age employees,
- trade union representatives,
- members of employee councils,
- social labour inspectors.
Consequences of the enacted changes:
In accordance with the change:
“§ 1 in matters concerning labour law, where an employee under special protection against termination with notice or without notice asserts a claim for the annulment of the termination of the employment relationship or for reinstatement to work, the court, upon the request of the entitled party at any stage of the proceedings, shall provide security by ordering the continuation of his employment by the employer until the delivery of the legally binding conclusion of the proceedings. The basis for granting security is only the likelihood of the existence of the claim. The court may refuse to provide security only in situations where the claim is clearly groundless…
§ 3. The obliged party may demand the annulment of the legally binding decision to provide security only if it demonstrates that after the provision of security, circumstances referred to in Article 52 § 1 of the Labour Code of June 26, 1974 have occurred. Changing the decision to provide security is inadmissible.
§ 4. An appeal to the second instance court shall be permissible against the decision regarding the provision of security.”
In practice, this means that in most cases, employees under special protection against termination of employment, who are subject to termination by the employer and subsequently lodge an appeal with the Labour Court, seeking reinstatement, followed by a court order for their continued employment, will remain employed until a delivery of a legally binding conclusion of the proceedings. The request from a protected employee to force the employer to continue his employment can only be denied in exceptional cases, such as when the claim is clearly groundless. The construction of the regulation results in the principle that the court will provide employees with security, thus obliging the employer to employ the employee until the delivery of the legally binding conclusion of the proceedings (which could last several years). Of course, parties to the proceedings have the right to file an appeal against such a court decision, but in practice, it might prove to be ineffective.
Source: The article was created in collaboration with our cooperation partner – sdzlegal Schindhelm Law Office
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