If an employer calculates the size of the business in order to find out whether the Employment Protection Act (Kündigungsschutzgesetz (KSchG)) is applicable, then temporary workers have to be potentially taken into consideration.
North Rhine-Westphalia -- (SBWIRE) -- 03/08/2013 -- GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg, Essen and London www.grprainer.com/en explain: In its judgment of 24 January 2013 (Az.: 2 AZR 140/12), the Federal Labour Court (BAG) decided that posted temporary workers can be relevant for the application of the KSchG, if they work for the company because they cover a “generally” existing demand for staff. It therefore makes no difference when calculating the size of the business in terms of the KSchG whether the employee is the company’s own employee or a borrowed employee, especially since the staff costs are the same. The crucial factor is likely that the temporary workers are engaged in a business in the same way as the regular employees.
The BAG confirmed in principle the view of the claimant, after the action had been met with no success in the courts of lower instance, but sent the action back to the court of lower instance for further factual clarification. Temporary employees are equally significant for the calculation of the size of the business, even if they have no employer-employee relationship with the proprietor of the business.
It argued that the KSchG serves to protect small businesses, which as a rule are exposed to greater burdens through the dismissal protection, since there is frequently closer personal cooperation and the financial resources are often similarly less than with larger businesses. Moreover, proceedings to decide on dismissal protection burden small companies. In the view of the BAG, these reasons do not, however, justify temporary workers being left out of the calculation.
Most mistakes in the field of labour law occur in the context of warnings and dismissal. In addition to detailed knowledge of labour law, negotiation skills and assertiveness are sought after. In proceedings to decide on dismissal protection, the right procedural strategy is decisive.
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