October 2005
Work It Out
How to deal with changes to your employment contract
This month, in the second and final part of our series on German labor laws, we look at changes that may be made to existing employment contracts and employment termination.
We will begin with the former. Not surprisingly, most changes made to contracts are initiated by the employer
(Arbeitgeber), not the employee
(Arbeitnehmer). In this context it is important to note the difference between the right to manage
(Direktions-recht) and an official change to a contract
(Änderungskündigung). The right to manage is, broadly speaking, the employer’s right to interpret the tasks stipulated in an employee’s contract. In other words, if a colleague doing a similar job to your own has fallen ill, your boss may reasonably ask you to take on some of that person’s work. However, when an employer wishes to make major changes to an employment contract, i.e. asks you to do a completely different job, to move your place of work or wishes to pay you a lower salary, this must be done through an
Änderungskündigung.
The
Änderungskündigung is a unique German instrument with which the employer gives you notice of the termination of your employment on its current terms and in the letter of termination offers you the continuation of your employment on new terms. As the employee you then have three options: to accept the new terms, to reject them outright or to accept them with reservations
(mit Vorbehalt). This last option is the most popular. If you wish to dispute an
Änderungskündigung, you have exactly three weeks in which to initiate a complaint procedure with a German employment tribunal—unlike in the United States or the UK, the time limit in Germany is rigid.
Normal termination of employment in Germany by an employer usually comes in one of the three categories. In the first, a so-called
betriebsbedingte Kündigung, you may lose your job because your employer has gone bankrupt or needs, for compelling commercial reasons, to relocate. In the second category, a
personenbedingte Kündigung, you may be sacked for not having the mental or physical ability to do a job, and in the third category, your conduct at work is considered grounds for dismissal and this is known as a
verhaltensbedingte Kündigung. In cases of this third type of termination, the employer is required to have issued written warnings
(Abmahnungen) on two previous occasions. Legal grounds for dismissal in Germany can be very different from those in Britain or the United States. So, persistent lateness may, after the abovementioned warnings, lead to a sacking, while alcoholism, which is seen in Germany as a long-term illness and not a conduct matter, as it is in Britain, is not always grounds for dismissal.
Further points to bear in mind: the law on protection from unfair dismissal
(Arbeitskündigungsschutzgesetz) does not apply when a company has fewer than ten employees. In an organization with ten or more employees, you can be fired only within the first six months. Also, if you are made redundant under normal circumstances in Germany, there is no automatic entitlement to severance pay
(Abfindung), though often there is a voluntary severance scheme in place.
Furthermore, conditions for the termination of employment are governed by the concept of what is “socially justifiable”
(Sozialgerechtfertigt). This means that, for example, when a company is planning redundancies, employees without codependants may lose their jobs first.
Finally, the British concept of salary in lieu of notice, where an employee is given three months’ salary in one lump sum and told to go home, does not exist in Germany. For more information go to the Website of Fachanwalt für Arbeitsrecht David Hole at
www.germanlaw.co.uk.
