often just employees of establishments with only a small number of employees affected by layoffs. These holdings, such as suppliers, have generally only a small number of employees compared to their major customer. When it comes to large customers financially poor, often the first business to small companies ended. These are then required to discontinue operations or laying off employees. The dismissed employees will be confronted with the fact that for them only a little job protection for employees is considered large companies. This following context.
After the dismissal protection law, which protects against socially unjust dismissals, are excluded from its protection so-called small businesses that typically employ ten or fewer employees. The intention is hiring be encouraged. The legislature is expected that new hires in small firms was not made, if any employees of small business would enjoy protection against dismissal under the Employment Protection Act and the employer's fear of having to pay high severance payments in the event of termination. A legal-political decision of great practical importance.
About a quarter of all workers and staff are employees of such small businesses. The extent to which workers are excluded from the scope of the Consumer Protection Act are still protected to some extent resulted from layoffs, but a long time in the shadows. There was widespread agreement that this group of people than special termination restrictions, such as for pregnant or council members, had been largely unprotected. Only the more recent case law has shown that this is not the case, and often gave legal advice, outside of the employment protection law was for the dismissed workers of a small business to do anything wrong.
So ruling of the federal court that the exclusion of small businesses from the general protection against dismissal is not justified where larger companies are divided into organizations that are each considered to be fall under the small business clause of the Employment Protection Act. Is to prevent that parts of larger Companies can rely on the small business protection, not protection for the true concept of § 23 para 1 sentence 2 of the Consumer Protection Act. According to the Federal Constitutional Court in this case are not recognized substantive arguments in differentiation that justify a measured on Article 3, paragraph 1 GG detriment of workers of small enterprises. Therefore, the term of operation shall be limited to organizations that was created for their protection, the small business clause.
is not given legal protection against unfair dismissal small business, despite a workforce of 10 or less full time employees, if the establishment is not the "middle class" is assigned to the entrepreneur does not even before as a manager of place cooperates, there are no particularly close personal relationship between the owner and his staff, has the small business will have an adequate financial resources and he has no limited government. It will be strongly influenced by the question, whether the existing structures, the performance of the individual or internal discord may affect the business outcome.
The termination of an employee in the small business can also be invalid under § 242 BGB, for violation of the principle of good faith. This is the case if the termination for reasons other than those listed in § 1 of the Consumer Protection Act grounds of good faith contrary. true even in a small business, the employer is a constitutionally required minimum of social consideration and may not be earned through a long-time employees confidence in the continuity of the employment relationship not considered.
this is to think in particular of a grossly erroneous social selection among workers with no conflicting interests in the development of operational redundancies, as well as a personal notice of termination of a short-term suffering from a disease all the world like a flu worker. will continue to cover a situation of a completely disproportionate to the marginal fault of the employee expressed behavioral withdrawal. judiziert Most often, the case of a grossly erroneous social selection for redundancies in the small business.
The case, therefore, if just because of the more vulnerable elderly and years of service workers made redundant and less worthy of protection is canceled. the employer has no particular reason, just to dismiss these workers for operational reasons or to avoid the dismissal of another, a gross disregard for the social selection criteria indicates a bad faith termination of that error in the termination of social selection makes quite unfair. But also disease-related dismissals in the small business can be legally invalid according to the latest case law.
Thus, in a disease-related dismissal in small businesses then the bad faith of the state labor court in Baden-Württemberg has been accepted if they are disease-related reasons enough in view of the length of service as "not obvious". For short-term illnesses, provide no guide to future absenteeism, a legitimate interest of the employer from terminating is not visible. From the principle of social justice and the rules of the continued payment law is clear that these dismissals also invalid for violation of public decency under § 138 para 1 BGB are. Therefore, dismissal on the grounds that the employee has in the past been missing due to illness, the small business void, if and when the disease does not affect the present and future.
are finally also often behave layoffs of workers in small operation for parts of the instance case law invalid because they violate the principle of proportionality, for example, when the behavior requires dismissed employees before the notice is not given a warning not to him the cited allegations belongs. As far as a controllable misconduct of the employee, is in terms of proportionality Issue a notice before a caution is required in principle. The requirement of warning is the objectification of the negative prognosis, employees will behave in the future, breach of contract.
Without prior warning can not be regularly expected due to the employee committed misconduct, there would be further contract disputes in the future to come. At the same time caution is also an expression of the proportionality principle. A termination is thereafter not be justified if there are other less restrictive means appropriate to eliminate a breach of contract in the future.
lawyer Dr. jur. Frank Sievert
Hamburg, 03.04.2010
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