Temporary workers can be taken into consideration in determining the application of the Employment Protection Act (Kündigungsschutzgesetz (KSchG)) when the employer calculates the size of the business in order to find out whether the KSchG is applicable.
North Rhine-Westphalia, Germany -- (SBWIRE) -- 03/04/2013 -- GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Stuttgart, Bremen, Nuremberg and London http://grprainer.com/en explain: The Federal Labour Court (Bundesarbeitsgericht (BAG)) decided in its judgment of 24 January 2013 (Az.: 2 AZR 140/12) that temporary workers posted to a business could be relevant in determining whether the KSchG is to be applied. At any rate, this is the case if temporary workers work for the company because they cover a “generally” existing demand for staff. In determining whether temporary workers are to be taken into consideration when calculating the size of the business, the crucial factor is that the temporary worker is engaged in the same way as a regular employee.
In the BAG’s instant case, the matter concerned an ordinarily dismissed employee who raised an action for dismissal protection. He pled that the KSchG was applicable in his case, since the borrowed workers were also to be taken into account.
The BAG appears to have confirmed in principle the view of the claimant. Temporary workers are equally relevant for the calculation of the size of the business, even if they have no employer-employee relationship with the proprietor of the business.
The BAG sent the claim back to the courts of lower instance for further factual clarification.
Most mistakes in labour law occur in the context of warnings and dismissal. The first thing that is essential is the right lawyer. In addition to detailed knowledge of labour law, negotiating skills and assertiveness are sought after. In proceedings to decide on dismissal protection, the right procedural strategy is decisive. A lawyer active in the field of labour law shall competently and consistently represent your interests before the labour court in the event of warnings and dismissal.
Since you have to anticipate short deadlines in the field of labour law, qualified legal counsel should be sought in each case.
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