Introduction
German employment law is divided into two areas: individual employment law and collective employment law. Individual employment law concerns relations between the individual employee and the employer, while collective employment law regulates the collective representation and organisation of employees as well as the rights and obligations of employees’ representatives.
German employment law is not consolidated into a single labour code: the main sources are Federal legislation, case law, collective bargaining agreements, works council agreements and individual employment contracts.
Legal Framework
German labour and employment law is not consolidated into a single labour code. Separate laws for particular issues exist – e.g. the Federal Vacation Act, the Working Time Act or the Maternity Protection Act. The main sources of German employment law therefore are Federal legislation, collective bargaining agreements, works council agreements and individual employment contracts. Many labour and employment law matters are heavily influenced by case law so that judicial precedent is an important part of the legal framework. Numerous separate laws and case law generally make German employment law difficult to navigate. There have been discussions about introducing a uniform Labour Code. The project was however abandoned and an introduction in the short- or mid-term is very unlikely.
New Developments
The Whistle-blower Protection Act (HinSchG)
The EU Whistle-blower Directive 2019/1937 was transposed into national law with the new Whistle-blower Protection Act. Employers with generally more than 50 employees are be obliged to set up internal reporting offices. The internal whistleblowing units act as an access point for reports and evidence of breaches of the law relating to the employment relationship. Employers can choose whether they operate the reporting system themselves with appropriate qualified personnel or whether they outsource it to an external service provider. In addition to the internal reporting systems to be operated by employers/service providers, the legislator has also established a reporting system with the Federal Office of Justice as an additional option for whistle-blowers.
The second important element of the HinSchG is a prohibition of discrimination against whistle-blowers. Employers always bear the burden of proof that a reprisal (e.g. dismissal) of a whistle-blower has not occurred as a result of the whistle-blower’s report.
Recording of Working Time
As a result of the well-known ECJ ruling (14 May 2019, C-55/18), the German Federal Labour Court (13 September 2022, 1 ABR 22/21) has decided that there is a mandatory obligation for employers in Germany to record all working hours (beginning and end of working time as well as rest periods), which arises from the general obligations employers have in terms of occupational health and safety. Currently, German statutory law only expressly requires employers to record working hours worked beyond eight hours per working day, as well as any work performed on Sundays or on public holidays. Hence, the Federal Labour Court ruling has caused legal uncertainty for employers. Amendments to the German Working Time Act (ArbZG) are currently still under discussion but can probably not be expected before 2026 due to the upcoming elections in 2025.
