The social and economic consequences of the corona pandemic for employers and employees are to be further mitigated in the coming months.
In the event of a loss of earnings of at least 50%, it was decided to increase the short-time working allowance to 70% resp. 77% from the fourth refer-ence month and to 80% resp. 87% from the seventh reference month, and to extend the period for which short-time working allowance is paid to 21 months, but no longer than until 31.12.2020. In addition, it was decided that the additional income limit during the period for which short-time working allowance is paid should be up to the full amount of the previous monthly income for all and thus also for non-system relevant occupations.
In the labour and social justice system, the adopted regulations aim to promote the possibility of using video-conferencing technology in the oral proceedings, so that, in addition to the parties and authorised representatives, witnesses, experts and honorary judges can participate in the oral proceedings by means of video and audio transmission.
Tax and duty-free special payments up to EUR 1,500.00
Employers will be able to make a special payment of up to EUR 1,500.00 tax and duty-free for their employees in 2020. The prerequisite is that the payment is received by the employee between 1.03.2020 and 31.12.2020 in addition to the salary and is recorded in the payroll account.
Federal Labour Court: Employer may access contents of a privately used business device
Due to the widespread activity of home offices since the outbreak of the Corona pandemic, we would like to take this opportunity to once again refer to the ruling of the Federal Labour Court on access to the contents of a privately used terminal.
According to this, the employer is enti-tled to view files that are located on an official terminal device and are not marked as “private” or are obviously of a private nature – even if there is no ustified suspicion of a criminal offence or serious breach of duty (Federal La-bour Court, decision of 31.1.2019 – 2 AZR 426/18).
In the case on which the decision is based, the defendant employer provided the plaintiff with a car together with a fuel card and also authorised private use. During a search of the plaintiff’s company laptop as part of an internal audit, the defendant came across a list of fueling operations carried out with the fuel card provided. Based on the data entered there, the defendant strongly suspected that the plaintiff had also used the fuel card to refuel other vehicles. On this occasion, the defendant terminated the employment relationship.
Contrary to the plaintiff’s opinion, the inspection and use of the found data by the defendant did not violate data protection law and was not subject to any prohibition of exploitation, so that they could be used to justify the termination.
PRACTICAL NOTE: The collection of data in accordance with data protection law also allows its use against the employee. The decision is, however, limited to official data. If, on the other hand, data is marked as “private” or is obviously of a private nature, it may not be viewed by the employer.
State Labour Court Rheinland-Pfalz: Employer’s obli-gation to cooperate with re-gard to the holiday entitlements of employees who are permanently ill
Holiday entitlements of employees who have been sick for a long time also expire on 31 March of the second fol-lowing year if the employer has not informed the employee of the imminent expiry of the holiday entitlement during the uninterrupted period of incapacity to work (State Labour Court Rheinland-Pfalz, judgement of 15.1.2020 – 7 Sa 284/19).
In the case decided, the plaintiff, who was continuously ill between January 2016 and February 2019, claimed compensation from the defendant for remaining vacation entitlements from the (vacation) year 2016. He took the view that the defendant should have informed him in good time of the forfeiture of his vacation entitlement, particularly in view of the judgement of the European Court of Justice, but no such information was provided. The Kaiserslautern Labour Court dismissed the action. The State Labour Court Rheinland-Pfalz confirmed the decision.
It is of the opinion that an obligation of the defendant to inform the plaintiff with the aim of ensuring that the plaintiff takes his vacation entitlement in time would be empty for the plaintiff who has been ill for a long time because the defendant could not grant the vacation at all (due to the plaintiff’s existing incapacity to work). In this respect, the duty to inform was obsolete and a forfeiture of leave was possible even without information from the defendant in conformity with European law on the basis of the judgement established by the Federal Labour Court. According to this, statutory holiday entitlements also lapse at the end of a period of 15 months after the end of the holiday year if the employee was prevented from performing his work for health reasons. This principle also applies in the case of continued incapacity to work. The appeal to the Federal Labour Court was allowed.
PRACTICAL NOTE: As the appeal has been allowed, a decision by the Federal Labour Court is likely. In this respect, it is to be expected whether, in corresponding application of the judgement of the European Court of Justice, a notice of forfeiture of vacation entitlements must also be given to employees who have been on sick leave for a long time, or whether such notice is not necessary due to the lack of the possibility of granting vacation. As the law on this matter has not yet been established, all employees should be informed of the possible forfeiture of holiday entitlements in accordance with the principles of the European Court of Justice, i.e. in good time, individually and specifically.
Stricter health and safety requirements for the meat industry agreed
The key points paper of the Federal Cabinet of 20.05.2020 (in charge: Federal Ministry of Labour and Social Affairs) envisages far-reaching measures for the meat industry.
This states, among other things, that customs and occupational health and safety authorities should take measures to ensure that occupational safety, infection and health protection standards are maintained in meat industry operations. In addition, it is intended to allow the slaughtering and processing of meat from 01.01.2021 onwards only by employees of the own company. This would mean that neither the use of external personnel within the framework of temporary employment nor the use of contracts for work for individual processing steps will be permitted.
OUTLOOK: This could lead to considerable staff shortages, particularly in the case of seasonal labour requirements. It also remains unclear whether an individual sector can be removed from the scope of application of the Temporary Employment Act and whether legally effective requirements can be set for the processing of the value chain by the company’s own employees.
We will keep you informed about further developments.