How much do employers train you
Age groups? So what is that?
These decisions can only be understood if it is clear in what context they are
If an employer wants to quit for operational reasons, she has to ensure through a so-called social selection that it affects those employees who are socially least in need of protection. To do this, it must check within each group of employees who perform a comparable job who deserves the least social protection. There is only no need for social selection if all employees of the company or a comparison group are to be dismissed.
Activities are comparable if the people who perform them are interchangeable. However, the prerequisite is that the employer can carry out this exchange solely on the basis of her right to issue instructions. If it had to give notice of change in order to replace it, the two activities are not comparable.
For example, a warehouse manager cannot be compared to a warehouse worker, because the employer cannot demote the manager to a warehouse worker without giving notice to change.
The decisive factor for the question of comparability is the activity that is to be performed according to the employment contract. If the actual activity deviates from this, this is irrelevant.
If with six employees, who are all employed as warehouse workers according to the employment contract, only one actually carries out, among other things, higher-quality tasks, he still remains comparable to his five colleagues. Because all six have to perform identical activities according to their employment contract.
Social selection criteria
Criteria for determining the degree of social protection worthiness are
- Length of service with the company
- Maintenance obligations
- Severe disability.
Interest of employers
The criticism from employers when applying these criteria was that, on the one hand, they cannot fire many older employees and, on the other hand, they lose many young, high-performing employees.
The employers were able to get the legislature changed the Dismissal Protection Act. Due to this change, employees are not to be included in the social selection, "... whose continued employment ... to ensure a balanced personnel structure ... is in the legitimate operational interest."
With this new regulation behind them, employers have formed age groups within the groups of comparable employees when making social choices. So about
- the 20 to 30 year olds
- the 31 to 40 year olds
- the 41 to 50 year olds
- the 51 to 60 year olds
- the over 60s.
With this, the employers wanted to ensure that those employees * who are to be dismissed, despite the relevant criteria for social selection, come more from the groups of the elderly than would be the case if the criteria were applied without age groups.
Case law of the Federal Labor Court
The Federal Labor Court has generally considered this approach by employers to be permissible. In later decisions, however, it specified the conditions under which employers can successfully refer to age groups.
The judgment of March 26, 2015
Even before this date, the Federal Labor Court made it clear that age groups can only be part of a proper social selection if the groups are actually suitable for safeguarding the existing age structure.
The decision of March 26, 2015 deals with the question of when this is the case.
It gives employers the individual steps they have to take if they want to form age groups.
The employer must first form groups of comparable employees. So you have to consider in which areas of activity you want to reduce the staff, and which employees * carry out this activity directly or do a job that is comparable to it. The employer can then form age groups within each individual comparison group.
Now the employer has to determine what percentage of the total workforce is represented in each age group. For example, if the company has a total of 500 employees and age group I consists of 100 members, it consists of 20 percent of the total workforce. There are 150 employees in age group II, i.e. 30 percent of the total workforce.
In each age group, the employer may only resign according to the percentage of the age group in the total workforce. This means that in age group I, she is only allowed to resign 20 percent of 100 members, i.e. 20 employees. In age group II it is 30 percent of 150, i.e. 45 employees.
Consequences of a violation of the requirements of the Federal Labor Court
If the employer fires more employees in an age group than she is allowed to, the formation of the age groups does not lead to a safeguarding of the existing personnel structure, but creates a new one. Therefore, in this case, the social selection should be made as if there were no age groups. If it then turns out that a dismissed employee is more worthy of social protection than a comparable, not dismissed employee, the social selection is incorrect. The termination is then ineffective.
The judgment of March 18, 2010
If employers express dismissals for operational reasons and there is a dismissal protection process before the labor court, they must present a comprehensive presentation with regard to the formation of age groups. This includes answering the following questions in their pleadings:
- What specific disadvantages would result if the social selection had been made without instead of with the age groups? It is not enough to state that the age structure would change to any significant extent. Rather, it is to be shown which specific disadvantages would result for the company as a result.
- To what extent are the educated age groups suitable for securing the personnel structure? In this context, it must be explained in detail why the employer formed which age groups and how this age group formation ensures that the existing age structure is retained.
If the employers do not submit any or too little evidence on this, the court must not assume that the social selection based on the age groups was correct. It then has to check whether the dismissal would be justified in the case of a social selection without age groups. If it were not, it is ineffective.
The full text of the decisions of the Federal Labor Court here
Decision of April 20, 2005, file number 2 AZR 201/04
Decision of March 18, 2010, file number 2 AZR 468/08
Decision of March 26, 2015, file number 2 AZR 478/13
In the practical tip: § 1 Dismissal Protection Act - KSchG
§ 1 Dismissal Protection Act
§ 1 Socially unjustified dismissals
(1) The termination of the employment relationship with an employee whose employment relationship in the same company or company has existed for more than six months without interruption is legally ineffective if it is socially unjustified.
(2) The termination is socially unjustified if it is not caused by reasons related to the person or behavior of the employee, or by urgent operational requirements that prevent the employee from continuing to work in this company. The termination is also socially unjustified if
in private law businesses
the dismissal violates a guideline under Section 95 of the Works Constitution Act,
the employee can continue to be employed at another job in the same company or in another company of the company
and the works council or another representative of the employees responsible under the Works Constitution Act has objected in writing to the termination within the period of Section 102 (2) sentence 1 of the Works Constitution Act for one of these reasons,
in companies and administrations under public law
the termination violates a guideline on personnel selection in the event of termination,
the employee can continue to be employed at a different job in the same department or in another department of the same administrative branch at the same place of employment including its catchment area
and the responsible staff council has raised objections to the dismissal in due time for one of these reasons, unless the level representation did not uphold the objections in the negotiation with the higher-level agency.
Clause 2 applies accordingly if the employee can continue to be employed after reasonable retraining or further training measures or the employee can continue to be employed under changed working conditions and the employee has given his consent. The employer has to prove the facts that lead to the termination.
(3) If an employee has been dismissed for urgent operational needs within the meaning of paragraph 2, the dismissal is still socially unjustified if the employer does not determine the length of service, age, maintenance obligations and severe disability of the employee when selecting the employee or has not given sufficient consideration; At the employee's request, the employer must give the employee the reasons that led to the social selection made. The social selection according to sentence 1 does not include employees whose continued employment, in particular because of their knowledge, skills and achievements or to ensure a balanced personnel structure in the company, is in the legitimate operational interest. The employee must prove the facts that make the termination appear socially unjustified within the meaning of sentence 1.
(4) If a collective bargaining agreement, a works agreement according to Section 95 of the Works Constitution Act or a corresponding guideline under the Staff Representation Acts stipulates how the social aspects according to Paragraph 3 Clause 1 are to be assessed in relation to one another, the assessment can only be made for gross inaccuracies to be checked.
(5) If, in the event of a dismissal due to a change in the company in accordance with Section 111 of the Works Constitution Act, the employees who are to be dismissed are identified by name in a reconciliation of interests between the employer and the works council, it is assumed that the dismissal is due to urgent operational requirements within the meaning of Paragraph 2 is conditional. The social selection of employees can only be checked for gross flaws. Sentences 1 and 2 do not apply if the situation has changed significantly after the reconciliation of interests has come about. The reconciliation of interests according to sentence 1 replaces the position of the works council according to § 17 paragraph 3 sentence 2.
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