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    The Higher Administrative Court of Münster (Oberverwaltungsgericht, the ‘OVG’) has held that a minimum body height of 163 cm for applicants to the police service, irrespective of gender, is lawful. At least, this shall apply if the determination of a minimum body height standard is a suitability criterion for access to the police service. Minimum standards solely serve the purpose of ensuring fitness for service and result from a comprehensive investigation. The investigation in this case established that suitability for the police service can only be guaranteed from a height of 163 cm upwards.


Paul Schreiner
Paul Schreiner is a partner at Luther Rechtsanwaltsgesellschaft mbH.

Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    According to German law, every employee is entitled to paid annual leave. The amount of pay is generally calculated based on the current salary (known as the “principle of loss of pay”) but a reduction of working hours during the year does not lead to a reduction of entitlement to holiday pay for previously acquired holiday entitlements. If the entitlement was already acquired before the reduction of working time (which can happen because in Germany holiday entitlement is acquired at the beginning of the calendar year), pay during leave will be based on the salary agreed between the employer and employee when the holiday entitlement was acquired and thus, based on the ‘old’ salary.


Nina Stephan
Nina-Stephan is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.

Paul Schreiner
Paul Schreiner is an attorney-at-law and partner with Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.

    The German Federal Labour Court has held that it was justifiable for the employment of an actor to be limited in time because of the “type of work” involved and the fact that the work was with a film production company, even though the actor was given a number of fixed term employment contracts over around 18 years.


Paul Schreiner
Paul Schreiner is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

Jana Voigt
Jana Voigt is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    The German federal court for labour law matters, the Bundesarbeitsgericht (the ‘BAG’), has held that evidence cannot be used in a dismissal lawsuit if the employer has obtained it from long-term surveillance using keylogger-software. Employers must not keep their employees under constant surveillance and must therefore expect their legal position to be weak if they try to dismiss an employee based on findings from such monitoring. The court ruling preceded the ECtHR Barbulescu ruling of 5 September 2017 (featured in EELC 2017/4) in a similar case.


Paul Schreiner
Paul Schreiner is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.

    An acquired mother tongue is – at least indirectly – connected to a person’s origin and therefore also linked to ethnic origin. Claims based on the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, the ‘AGG’) must be brought in writing within two months after knowledge of a possible discrimination. Time only starts to run for claims after the employer has provided an unsuccessful job applicant with a clear and definite statement that he or she has been rejected. The limitation period under the AGG will not be triggered by lapse of time only.


Paul Schreiner
Paul Schreiner is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.

Jana Voigt
Jana Voigt is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.

    A clause in a collective bargaining agreement stipulating that overtime premiums for part time employees are only payable if their monthly working hours exceed those of a full-time employee is not discriminatory.


Paul Schreiner
Paul Schreiner is a partner with Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.

    Unlawful discrimination cannot be found even for morbid obesity under the German Equal Treatment Act.


Paul Schreiner
Paul Schreiner is a partner with Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.

    A claim for compensation for discrimination was not excluded simply because the applicant did not have the ‘objective qualifications’ necessary for the job. According to the German General Equal Treatment Act (the ‘Allgemeines Gleichbehandlungsgesetz’, or ‘AGG’), what is necessary for a compensation claim is a ‘comparable situation’. According to the latest decision of the German Federal Labour Court (the ‘Bundesarbeitsgericht’, or ‘BAG’) this can occur even if the applicant does not fulfill the general requirements to do the job.


Paul Schreiner
Paul Schreiner and Nina Stephan are respectively partner and associate with Luther Rechtsanwaltgesellschaft MbH, www.luther-lawfirm.com.

Nina Stephan
Paul Schreiner and Nina Stephan are respectively partner and associate with Luther Rechtsanwaltgesellschaft MbH, www.luther-lawfirm.com.
Case Reports

2016/60 Special protection for disabled employees against termination of employment – international apsects (GE)

Journal European Employment Law Cases, Issue 4 2016
Keywords Disabled employees, Invalid termination, International aspects
Authors Paul Schreiner and Nina Stephan
AbstractAuthor's information

    An employee may bring a claim for invalid termination before the German Labour courts, irrespective of the law governing the employment relationship. In Germany, it is only possible for an employer to dismiss a severely disabled person if the competent state authority grants a permit enabling it to do so. However, this requirement is limited to those with employment agreements under German Law.


Paul Schreiner
Paul Screiner and Nina Stephan are, respectively, a partner and an associate with Luther Rechtsanwaltgesellschaft mbH, www.luther-lawfirm.com.

Nina Stephan

    If a collective agreement grants older employees a higher vacation claim solely because of their age, a younger employee is entitled to the same number of days of leave.


Paul Schreiner
Paul Schreiner and Jana Hunkemöller are, respectively, a partner in Essen and an associate in Düsseldorf with Luther Rechtsanwaltgesellschaft mbH, www.luther-lawfirm.com.

Jana Hunkemöller

    In businesses employing fewer than ten employees, the rules on unfair dismissal do not apply. However, those on discrimination do. This fact made it possible for the 63 year-old employee in this case to claim damages, effectively for unfair dismissal. She had been dismissed following a reduction in the available work. She was selected for redundancy because she was less qualified than her colleagues. However, her termination letter mentioned that she had become “eligible for retirement”. This remark created a presumption of age discrimination, which the employer was not able to rebut.


Paul Schreiner

Dagmar Hellenkemper
Paul Schreiner and Dagmar Hellenkemper are lawyers with Luther Rechtsanwaltsgesellschaft mbH, www.luther-lawfirm.com.

    An employee who does not recover from illness during the calendar year in which he accrues paid leave (the ‘leave year’) and who continues to be incapable of taking that leave, loses the right to take it 15 months after the end of the leave year, i.e. on March 31 of the second calendar year following the leave year. If his employment terminates within that 15 month period, his entitlement to leave converts into a claim for payment in lieu, and as such, can be claimed by his heirs if he dies.


Paul Schreiner
Paul Schreiner and

Dagmar Hellenkemper
Dagmar Hellenkemper are Rechtsanwälte with Luther Rechtsanwaltsgesellschaft mbH, www.luther-lawfirm.com.
Article

Access_open How Law Manifests Itself in Australian Aboriginal Art

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, native title, reconciliation, indigenous people of Australia, Aboriginal art
Authors Dr. Agnes T.M. Dr. Schreiner
AbstractAuthor's information

    The article How Law Manifests Itself in Australian Aboriginal Art will discuss two events at the Aboriginal Art Museum Utrecht from the perspective of a meeting between two artistic and legal cultures. The first event, on the art and law of the Spinifex people, will prove to be of a private law nature, whilst the second event, on the art and law of the Wik People, will show characteristics of international public law. This legal anthropological contribution may frustrate a pluralistic perspective with regard to the coexistence of Western law and Aboriginal law on the one hand and of Utrecht's Modern Art Museum and the presented Aboriginal Art on the other. It will show instead the self-evidence of art and law presented and their intertwined connection for the Aboriginal or indigenous peoples of Australia.


Dr. Agnes T.M. Dr. Schreiner
Agnes T.M. Schreiner studied Law and is Lecturer on several themes of the General Jurisprudence at the Law Faculty, University of Amsterdam, The Netherlands. Within the Masterprogram European Private law she teaches the course Anthropology of European Private Law. She received her Ph.D. in 1990. She has specialized in a series of subjects: Law & Media, Law & Arts, Law & Rituals, Law & Culture, Law & Semiotics and Law & Social Sciences.
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