The importance of dismissals for operational reasons and plant closures will therefore inevitably increase, despite the shortage of skilled workers that dominated the world of work until recently.
Conditions for the effectiveness of a dismissal for operational reasons
The conditions for the effectiveness of a dismissal for operational reasons depend on the size of the company, the number of intended dismissals and the existence or non-existence of a works council.
Company size - application of the Dismissal Protection Act
In a company with, as a rule, no more than ten employees, a dismissal is generally effective if there are no (operational) grounds for dismissal and the relevant notice period is observed.
In a company with more than ten employees, however, a dismissal is only justified by urgent operational requirements (for operational reasons) if, in accordance with Section 1 para. 2 KSchG
- at least one job is permanently lost due to a business decision or external factors,
- continued employment in the company is not possible even after "reasonable training or further training measures" and
- a proper social selection has been made on the basis of length of service, age, maintenance obligations and any existing severe disabilities/equal status.
The employer can use a points system for such a social selection. In order to maintain a "healthy" age structure in a company, age groups can be formed for social selection under strict conditions. High performers can be excluded from the social selection under certain circumstances.
The burden of proof for the effectiveness of a dismissal generally lies with the employer.
On the number of intended dismissals - collective redundancy notification
If there are usually more than 20 employees in a company, the threshold values of Section 17 para. 1 KSchG must also be observed. In the case of certain ratios between intended redundancies and the number of employees employed, a notification of dismissal must be submitted to the competent office of the Federal Employment Agency. In doing so, the mandatory information required under Section 17 para. 3 sentence 4 KSchG must be observed. Formal errors in the notification of dismissal may lead to the invalidity of all dismissals based on it. As this provision is based on EU law requirements of the Collective Redundancies Directive, the case law of the ECJ must also be taken into account when interpreting and applying Section 17 KSchG.
The existence or non-existence of a works council - consultation, reconciliation of interests, social plan and list of names
Dismissals for operational reasons become (even) more complicated if there is a works council in the company concerned.
If there is a change in operations within the meaning of Section 111BetrVG, in particular if the entire business or significant parts of it are reduced or closed down, the employer must negotiate a reconciliation of interests and social compensation plan with the works council in accordance with Section 112 BetrVG. In the event of redundancies for operational reasons, the works council can enforce a social compensation plan in accordance with Section 112a BetrVG. If a negotiated reconciliation of interests contains a list of names of employees to be dismissed, it is assumed in accordance with Section 1 para. 5 KSchG that the dismissal is socially justified. The social selection is only checked for "gross errors". In practice, the inclusion of a list of names therefore leads to a significantly lower litigation risk for the employer.
The procedure under Section 17 KSchG is extended in paragraph 2 in companies with a works council to include a mandatory consultation procedure. Here too, formal deficiencies or a lack of seriousness in the consultation may lead to the invalidity of all dismissals for operational reasons. In addition, the notice of dismissal must be accompanied by a statement from the works council, which is only dispensable under strict conditions.
Dr. Philipp Harländer