The Federal Labour Court Annual Review 2019

The eight most important decisions of 2019The Federal Labour Court (BAG) once again handed down a number of landmark decisions in 2019.The decisions reflect the good economic situation in Germany. The main topics this year were vacation entitlements and less frequently dismissals and similar unpleasant matters.Below we present the highlights of 2019 the eight most important decisions and their impact on working life.Judgment of the Court of Justice of the European Union of 6 November 2018, case number C 684/16 expiry of vacation entitlementsThis decision concerns the expiry of vacation entitlements. The Court of Justice had already decided this issue in the past. The Federal Labour Court implemented the requirements of this decision directly. It is now clear that vacation entitlements can no longer simply expire unless the employee was actually in a position to take his or her vacation. The employer must now even call upon the employee to take the annual vacation. Merely stating the remaining vacation entitlement on the payslip is no longer sufficient.Judgment of 19 March 2019, case number 9 AZR 315/17 vacation during special leaveIn this case, in addition to her approved special leave, an employee sought further vacation from her employer. The Federal Labour Court rejected the employee’s request and changed its case law on this issue. Previously, the existence of an employment relationship alone was decisive for the entitlement to vacation. The extent to which work was actually performed in this relationship played no role in the past. The specific contractual arrangements between the parties were decisive. The situation remains different in the case of parental leave. Vacation entitlements continue to arise despite parental leave.Judgment of 22 January 2019, case number 9 AZR 45/19 entitlement of heirs to payment for unused vacationThe Court of Justice had decided that the heirs of an employee are entitled to payment in lieu of unused vacation and the Federal Labour Court followed the Court of Justice in this decision. In the court’s view, this entitlement arises under the Federal Vacation Act. Before this decision, payment in lieu of vacation was only recognised if a claim for payment in lieu had already arisen during the lifetime of the deceased.Decision of 12 March 2019, case number 1 ABR 42/17 tasks of the works councilAnother case concerned the tasks of the works council in a company. According to this decision, the works council may not simply refuse to participate in a particular project of the company. It has a duty to cooperate in a relationship of trust and to exercise its rights of co determination.Although the works council may refuse to cooperate, it needs a comprehensible justification.Judgment of 20 February 2019, case number 2 AZR 746/14 dismissal of a chief physician due to a second marriageIn this case the court dealt with the dismissal of a chief physician in a Catholic hospital on account of a second marriage. The case attracted nationwide attention. The court ultimately held that the dismissal was discriminatory and therefore invalid. The Archdiocese of Cologne then refrained from lodging a constitutional complaint and the proceedings ended.Judgment of 23 January 2019, case number 7 AZR 733/16 requirements for fixed term contracts without objective reasonThe court dealt with the requirements for fixed term contracts without objective reason. Under section 14 paragraph 2 sentence 2 of the Part Time and Fixed Term Employment Act, a fixed term employment contract without objective reason is no longer permissible if an employment relationship of at least one and a half years with comparable duties existed between the employer and employee eight years earlier. The Court of Justice has now held that the courts can restrict the application of this provision if a prohibition of such fixed term contracts without objective reason would be unreasonable. The Federal Labour Court held that this is always the case if the previous employment is long ago, of a completely different nature or only of short duration.Judgment of 20 November 2019, case number 5 AZR 578/18 scope of vacation entitlements in the case of release from workThis decision also concerns employees vacation entitlements and makes clear that payment in lieu of statutory vacation entitlements in the case of release from work after termination does not automatically also cover overtime, unless this has been addressed in a settlement. The employee must be able to see clearly which claims the employer wishes to settle by the release.Decision of 7 August 2019, case number 5 AZB 16/19 errors relating to the special electronic mailbox for lawyersThis decision concerns possible errors in connection with the special electronic mailbox for lawyers.Failure to print out messages and error reports for coordinating deadlines in a law firm and possible missed deadlines resulting from errors in the use of the special electronic mailbox are not attributable to the system. They constitute organisational negligence on the part of the lawyer. If use of the system does not work, the law firm is obliged to send documents to the addressees by other means, for example by telephone or post. In this decision the Federal Labour Court followed the settled case law of the Federal Court of Justice.As already mentioned, the key decisions of 2019 are very much concerned with vacation, even though one might think that vacation brings only relaxation and not legal disputes. Attorney at law Hans Jörg Briest and his team in Berlin will advise and assist you with the changed case law in the new year 2020 in asserting your labour law claims and in labour court proceedings.