In a recent ruling, the Federal Labor Court clarified that the statutory extension of notice periods pursuant to Section 622 (2) BGB does not apply to employees in private households. Although there is unequal treatment with company employees, this is justified.

BAG judgment of 11.06.2020 - Ref.: 2 AZR 660/19

The facts of the case

The specific case concerns a domestic worker who had been employed in the defendant's private household since February 2006. The employment contract stipulated a notice period of 6 weeks to the end of the quarter. At the end of January, she received an extraordinary termination without notice, which was declared invalid by a court in February 2018. The employer is now arguing that the employment relationship was terminated on March 31, 2018 by reinterpreting this termination as an ordinary termination. The plaintiff assumes that the employment relationship ended at a later date.

The date of termination of the employment relationship and thus the question of the notice period are therefore in dispute.

Why extended notice periods apply for employers

Employment law is first and foremost a protective right in favor of the employee, as the employee is regularly inferior to the employer in terms of their position of power and the associated options for structuring the employment relationship. The notice periods are intended to provide employees with social security and a reasonable amount of time to find an adequate replacement.

The staggered extensions of the notice period provided for in Section 622 (2) BGB are intended to protect older employees in particular, as a longer period of employment is usually accompanied by a higher age. The employee's social ties and areas of responsibility also increase with age and thus the countervailing flexibility decreases. Older employees are therefore considered more worthy of protection than younger employees. This greater need for protection is reflected in the staggered extension of notice periods.

Longer notice periods not for domestic workers - unequal treatment?

The plaintiff now claimed that the non-application of the extended notice periods to private household employees constituted unjustified unequal treatment and therefore violated the principle of equality under Article 3 (1) of the Basic Law. In addition, there is indirect discrimination to the detriment of women, as employees in private households are predominantly women. Therefore, the extended notice periods should also apply to domestic employees.

The FOPH deals with these aspects in detail.

First of all, it states that, according to its wording, the provision of Section 622 (2) BGB only applies to employees in companies and businesses. Private households are not to be equated with companies. While companies are aimed at making a profit, private households are a place of retreat for private living.

Nevertheless, this restriction constitutes unequal treatment to the detriment of employees in private households. However, this unequal treatment is justified due to the different interests involved.

Justified unequal treatment of domestic workers

The extended notice periods are an expression of a balance of interests between employers and employees. However, this balancing of interests is different for companies and businesses than for employment relationships in private households.

The purpose of companies, and therefore also the business premises belonging to them, is the production of economic goods and the generation of profit. In doing so, employees regularly only enter those areas that are only open to employees or partly also to customers due to their intended use. Although these areas are subject to the protection of Art. 13 GG, they are not part of the core area of the entrepreneur's private life.

As part of the extended notice period, the employer is also free to employ the employee in question at another workplace in the company. This would allow the employer to benefit from the employee's work performance even during the extended notice period. In this respect, the law assumes an exchange relationship that can be maintained until the end of the notice period.

By contrast, employees in private households enter the employer's private premises and thus invade the core and retreat area of the private sphere. These employment relationships are therefore associated with a much closer relationship between employer and employee. In addition, in a private household it is not possible to deploy the employee in another area - outside the core private area. Therefore, they only have the option of maintaining the employment relationship for the extended notice periods of up to 7 months and thus permanently tolerating the employees in the core area of the private retreat or releasing them from work for the duration of the notice period while maintaining wage payments. This would make it impossible for them to continue to benefit from the employees' work performance.

Due to these different interests and effects, the different treatment is justified. Nothing to the contrary arises from Union law or ILO Convention No. 189.

No discrimination against women

With regard to discrimination on the basis of gender, the BAG did not consider this to be the case. Although it could be assumed that a significantly higher proportion of employees in private households were women, the notice periods were not designed to be discriminatory. There were objective, non-discriminatory and significant differences between the two groups of employees in the company and those in private households, meaning that the structure of Section 622 (2) was still within the scope of the legislator's discretion.

Conclusion on non-extended notice periods for domestic workers

With this ruling, the BAG has clarified that the staggered extension of the notice periods does not apply to employees in private households. Those affected should keep this in mind and work towards a favorable arrangement of the notice periods in the employment contract.