Stuttgart Labor Court - dismissal without notice possible for the introduction of short-time work

The Stuttgart Labor Court ruled in the first instance that a dismissal without notice for the introduction of short-time work can be justified under certain conditions.

The question of whether and, if so, under what conditions a dismissal without notice is possible for the introduction of short-time work is controversial in case law and has not yet been decided by the highest court. In particular, the question arises as to whether the Federal Labor Court's case law on dismissal with immediate effect also applies to a reduction in pay. It is therefore worth taking a closer look at this ruling.

The facts of the case

Since 2011, the plaintiff employee has worked as a personnel planner in a company that operates a temporary employment agency and regularly employs more than ten employees. She was responsible for the commercial, medical, social and nursing areas. Most recently, however, she had worked almost exclusively in the social and care sector, in deployment planning and coordination for kindergartens and daycare centers. In March 2020, in addition to the closure of schools, kindergartens and daycare centers were also closed. The employee was ill from 06.04.2020. Only at a later date did it become apparent that this illness would last until August 2020. On April 9, 2020, the defendant asked the plaintiff to sign an agreement on the introduction of short-time work during a telephone call. The plaintiff refused to do so.

On April 2, the defendant had already applied to the Federal Employment Agency for a loss of working hours due to the coronavirus-related closure of schools and kindergartens. As a result, the Federal Employment Agency approved short-time work compensation for the period from 01.04 - 31.12.2020 on 14.04.2020. On 22.04.2020, the plaintiff employee then received a termination notice without notice, or alternatively an ordinary termination notice from her employer. In this, the employee was offered to continue the employment relationship under the conditions that short-time work would be ordered until December 31, 2020 at the latest.

The employee accepted this condition - subject to judicial clarification of the legality of the notice of dismissal - and filed an action for unfair dismissal.

Notice of dismissal lawful

A dismissal with notice of change is socially justified if urgent operational requirements necessitate the change. In addition, the employer must limit itself to offering the employee only those changes that the employee must reasonably accept. This is the case if the changes comply with the principle of proportionality. The changes must therefore be suitable and necessary to adapt the content of the employment contract to the remaining employment opportunities and may not deviate further from the previous content than is necessary. In addition, the decisive factor is whether the underlying organizational decision forces the change or whether it could essentially be implemented without or with less drastic changes.

In the present case, there is an urgent operational reason, as the legislative assessment of §§ 95 et seq. of the German Social Code III (SGB III) means that a recognized significant loss of working hours constitutes an urgent operational requirement. Since a works council does not exist and an individual contractual agreement is ruled out due to the plaintiff's refusal, the employer only has the option of giving notice of termination in order not to make access to short-time work compensation, which is provided for by law and also desired in terms of employment policy, impossible. It was also not apparent at the time of the dismissal with notice of change that the plaintiff was on long-term sick leave. The plaintiff had not asserted an incorrect social selection. Therefore, the dismissal with notice of change was socially justified.

The principle of proportionality was also upheld. There was a lead time of three weeks and the short-time work was limited in time until December 31, 2020 at the latest. The conditions for the introduction of the short-time working allowance were also met, particularly with regard to the plaintiff's employment, as the closure of the childcare facilities due to the coronavirus led to a significant reduction in the demand for labor. This was also recognized by the employment agency.

Accordingly, the dismissal was lawful.

Notice of termination without notice also possible

In addition, in the opinion of the court, the notice of termination could also be given without notice in the present constellation. Longer notice periods due to ordinary termination would have meant that the employer would no longer have been able to make meaningful use of the regulatory instrument of short-time work due to the imminent expiry of time. The corona-related situation with the short-term closure of the facilities, which had an unforeseeable short-term effect on the need for work and led to the employer no longer being able to plan, also spoke in favor of the possibility of dismissal without notice. Otherwise, the reasonable possibility of introducing short-time work - if individual employees refuse to do so - would be ruled out. Moreover, no other less severe measures were apparent.

Conclusion

It can be assumed that this decision has not become legally binding. Accordingly, these proceedings could lead to a supreme court ruling regarding the possibilities of a termination without notice for the introduction of short-time work. Even though this is an individual case decision, standards are being developed which can be applied to other cases. It is worth keeping an eye on further developments.

Employers who do not have a corresponding works agreement and who are confronted with the refusal of individual employees to introduce short-time work should carefully examine the existence of the standards developed here - in particular the prerequisite for the introduction of short-time work.