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    According to German law, leave entitlements of an employee shall in principle expire at the end of the calendar year or a permissible carryover period. However, based on the case law of the ECJ, this shall only apply if the employer has previously enabled and summoned the employee to take leave and the employee has nevertheless not taken it. But what happens if an employee is incapacitated for work for a longer period of time and therefore is unable to take his or her annual leave? Does the employer also have to inform this employee about their leave entitlement? The Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) recently had to deal with this question in two cases and now the ECJ will have to address this matter. This is because the BAG has asked the ECJ to decide whether and when an employee’s entitlement to paid leave can expire if an employee loses their ability to work during the course of the leave year, while the employee could have taken at least part of the annual leave before becoming incapacitated for work, but the employee was not properly informed by the employer about their leave entitlement.


Katharina Gorontzi
Katharina Gorontzi is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

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

Jule Rosauer
Jule Rosauer is a legal trainee at Luther Rechtsanwaltsgesellschaft mbH.
Case Reports

2019/34 Reduction of annual leave during parental leave is lawful (GE)

Journal European Employment Law Cases, Issue 3 2019
Keywords Maternity and parental leave
Authors Nina Stephan and David Meyer
AbstractAuthor's information

    The Higher Labour Court of Berlin-Brandenburg (Landesarbeitsgericht (LAG)) has held that the pro rata reduction of annual leave depending on the period of parental leave is lawful. In general, statutory holiday entitlement also exists for the period of parental leave. However, the employer has the right to reduce leave pro rata for each full month of parental leave according to Section 17 paragraph 1 sentence 1 of the Federal Parental Allowances and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz (BEEG)). The proportional reduction is in line with European law.


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

David Meyer
David Meyer is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    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.
Case Reports

2019/9 The right to object against a transfer in case of incorrect information is not unlimited (GE)

Journal European Employment Law Cases, Issue 1 2019
Keywords Transfer of undertaking, Employees who transfer/refuse to transfer
Authors Nina Stephan
AbstractAuthor's information

    According to German law, every employee has the right to object to the transfer of their employment relationship to the transferee in the case of a transfer of business. However, the right to object is not unlimited. The Federal Labour Court (Bundesarbeitsgericht (‘BAG’)) held that an employee who had worked for the transferee for seven years had lost this right if they had been informed about the transfer.


Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltgesellschaft 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.

    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
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