Unfortunately, we have to report here again and again on new challenges in the submission of an effective mass dismissal notice pursuant to Section 17 (1) of the German Dismissal Protection Act (KSchG).
Most recently, the Regional Labor Court of Hesse (LAG Hessen) imposed on employers the obligation to include the so-called "expected" information (i.e. not mandatory information but information that should be given) in the mass dismissal notice in addition to the mandatory information required by law - we reported on this (New stumbling blocks in mass dismissal law).
Fortunately, the Federal Labor Court has now removed at least this hurdle. The ruling, which has now also been published in full text, makes it refreshingly clear that the LAG Hessen (June 18, 2021 - 14 Sa 1228/20) went far beyond the legislative intent in its ruling with its interpretation in line with the directive. The Federal Labor Court overturned the decision of the LAG Hessen and ruled that a lack of the “expected” information pursuant to Section 17 (3) sentence 5 KSchG does not lead to the invalidity of a mass dismissal notification by the employer to the Employment Agency (May 19, 2022 - 2 AZR 467/21).
No ineffectiveness in the absence of the merely expected information
Mass layoffs have an enormous economic impact. An incorrect mass dismissal notice can lead to the invalidity of all dismissals. However, the procedure no longer has anything to do with the original purpose of the mass layoff notice - namely, to prepare the Employment Agency for a large number of job seekers.
Pursuant to Sec. 17 (3) Sentence 5 KSchG, the mass layoff notice "shall" include, in addition to the mandatory information, further personal data of the employees concerned, namely gender, age, occupation and nationality. In the corresponding forms of the Federal Employment Agency (which, incidentally, also ask for place of residence, working hours and "special characteristics" such as severe disability or the status of "single parent" beyond the wording of the law), this information was always described as "voluntary".
After the Regional Labor Court (LAG) of Hesse unceremoniously made this “voluntary” information mandatory last year, the Federal Labor Court (BAG) has now put the previous practice back on a legally secure footing. This did not require a preliminary ruling from the ECJ. Instead, it ruled that Sec. 17 (3) Sentence 5 KSchG is clearly not designed as an effectiveness requirement for the mass dismissal notice according to the intention of the - national - legislator expressed in the wording of the law, the systematics of the statute and the documents on the legislative process. The national courts may not disregard this legislative decision by way of an interpretation in conformity with the Directive. The obligation to implement a (supposed) directive objective may not serve as the basis for an interpretation of national law "contra legem". In the present ruling, the Federal Labor Court makes it clear that the national courts would cross the line into a "substitute legislator" by "reinterpreting" Section 17 (3) sentence 5 KSchG into a mandatory provision under dismissal protection law.
The Federal Labor Court nevertheless further states that an interpretation in conformity with the Directive would not be required in the present case. The case law of the ECJ has already clarified that the information provided for in Sec. 17 (3) sentence 5 KSchG does not have to be included in the notification pursuant to Art. 3 (1) subpara. 4 of the Mass Dismissals Directive. Accordingly, the Directive does not require that at the time the notification is made, it is already known which specific employees are to be dismissed. Consequently, information relating to specific employees - such as that pursuant to Sec. 17 (3) Sentence 5 KSchG - cannot be a prerequisite for the effectiveness of the notification under European Union law.
Calculation of time limit
The Federal Labor Court also took the opportunity to clarify the correct calculation of the 30-day period pursuant to Sec. 17 (1) Sentence 1 KSchG. It clarifies that it is not a time limit in the sense of §§ 186 et seq. BGB (German Civil Code), but rather whether the employer has made a certain number of redundancies within a period of 30 calendar days (00:00 hrs. to 24:00 hrs.).
The LAG Hessen must now make a new decision taking into account the decision of the BAG.