According to a recent ruling by the Higher Labour Court of Hesse dated 12 October 2015 (16 Sa 278/15), a minimum standard of protection against dismissal also applies in dental practices with fewer than ten employees. According to the court, effective legal protection requires that an employee must have the option of judicial review of a notice of alteration even outside the scope of the German Dismissal Protection Act. Accordingly, the general principles governing protection against dismissal outside the Dismissal Protection Act apply. As a result, the dental practice in question must continue to employ a dental assistant under the original, unchanged conditions.
Frequently asked questions
Frequently asked questions
Does the German Protection Against Unfair Dismissal Act apply to dental practices with fewer than 10 employees?
The German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz, KSchG) generally does not apply to small businesses with up to ten employees. However, case law establishes a minimum level of dismissal protection derived from general principles of civil law. Employees are therefore not entirely without protection, even if the business falls below this threshold.
Can employees in small businesses have an amended termination reviewed by a court?
Yes. In its ruling of 12 October 2015 (16 Sa 278/15), the LAG Hessen held that effective legal protection must allow judicial review of amended terminations even in small businesses. Otherwise, employees outside the scope of the KSchG would have no means of review, which would be incompatible with general protection against dismissal.
What are the consequences of an invalid termination with modified terms in a small business?
If the termination with modified terms is invalid, the employer must continue to employ the employee under the original, unchanged conditions. In the case decided, the dental practice had to continue employing the dental assistant under her original terms.
What is the basis of minimum dismissal protection outside the KSchG?
Minimum dismissal protection is based on the general principles of civil law, in particular good faith (§ 242 BGB) and the prohibition of immoral dismissals (§ 138 BGB). Dismissals must therefore not be arbitrary, contrary to good faith, or discriminatory, even where the KSchG does not apply.