The Federal Labour Court (BAG ruling of 06.05.2014, ref. 9 AZR 678/12) has ruled that employees may not have their statutory paid holiday entitlement reduced due to unpaid special leave on account of a so-called care period. This means that paid leave entitlement is also available on top of the (unpaid) care time.
In its reasoning, the BAG points out that the legal entitlement to paid leave is mandatory by law and thus cannot be stipulated or shortened in an employment contract. A reduction only comes into question if this is provided for by law, such as in the case of military service or parental leave. However, the Nursing Care Leave Act (PflegeZG) does not provide for any possibility of reduction, even if the employment relationship is suspended during the nursing care leave due to this special leave.
If an employee has to fear dismissal, perhaps for operational reasons, due to the dissolution of his department or other circumstances, he can avoid the employer’s possibility of dismissal by announcing a period of care – perhaps not intended until the following year.
This means that employees who fear a possible dismissal for whatever reason, e.g. because staff cuts are announced, can, for example, announce a care period of up to 6 months a year in advance and in this way prevent any dismissal measures for 18 months. This can also be achieved with the announcement of a one-month care period, and the period can possibly be longer. The six months of the care period can be shortened – e.g. because the person to be cared for does not accept the care, goes to the nursing home or refuses the intended removal from the home, is aggressive, or the caregiver is overtaxed. And if this occurs before the start of the care period, then the care period ends before it begins, if applicable.
This means that it is easy to control when the period of time during which the company is at risk of being laid off has come to an end – for example, because the economic situation has improved because enough other employees have already been laid off. Often it is enough to survive such critical phases in which those to be dismissed are selected.
If no suitable person in need of care can be found, other possibilities are known from practice. In many cases, negotiations on severance agreements are also conducted by the employer in the run-up to a dismissal due to staff cuts. With some luck such negotiations about the compensation height and disadvantage compensation last so long, until in the course of this discussion – with which the consultation of an actuarial expert helpfully usually some points of criticism, which can be solved by the employer still expensively, will uncover – sometime the own superior had been saved, with which the negotiations ended without consequences simply. Of course, those employees are at an advantage whose employment contract contains some difficulties with regard to the possibilities of termination, which should be taken into account as soon as possible when concluding the contract.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
published on 20.11.2014 in Insurance Today
