Germany: The obligation to inform authorities in case of mass redundancy does not serve employee protection
A mass dismissal must be notified in advance to the Labour Agency. The Dismissal Protection Act (DPA) regulates this obligation and the specific content of the notification. One element is a transcript of the works council’s consultation on the mass dismissal, Sec. 17(3) S. 1 DPA.
In the present case, the employer did not provide the Labour Agency with such a transcript. An employee therefore challenged the termination of his employment in the context of mass redundancy on the basis that the employer had breached the obligation to inform the Labour Agency.
As there is no provision on the consequences of a breach of this obligation, the termination could only be declared null and void on the basis of Section 134 of the Civil Code. However, this requires the violation of a provision that provides individual protection for employees. Since Sec. 17(3) sentence 1 DPA implements Art. 2(3), second sentence, of the EU Collective Redundancies Directive, its assessment with regard to a possible individual protection dimension depends on the aim of the article. The Federal Labour Court, therefore, referred the matter to the ECJ.
The ECJ held that Art. 2(3), second sentence, of the EU Collective Redundancies Directive does not aim at the individual protection of employees. Rather, the obligation to provide information on the consultation of the works council is intended to ensure that the Labour Agency receives all relevant information to enable it to gain an overview of its forthcoming tasks in connection with the mass dismissal.
- The Federal Labour Court is expected to apply this decision of the ECJ to Section 17(3) sentence 1 of the DPA and to reject the individual protection and thus, the invalidity of the dismissal based on a violation of this provision.
- As the ECJ decision only concerned this specific element of the mass dismissal procedure, violations of other elements may still lead to the invalidity of subsequent dismissals.