David Hole

Although there is more law in the employment relationship, it is no more difficult than the employment protection provisions of many other countries. The developments in European law are also particularly keenly felt in the employment field and the positive side of this is to make such developments in the law more widely recognisable and applicable. Having said that, German employment law retains some very striking differences from UK provisions:

• There are rules governing the type and content of questions that can be asked of a candidate at a job interview. An untruthful answer to a prohibited question is no ground for termination.
   
• There is no legal requirement for an employment contract to be in writing, but this, as in all legal matters, is preferable. Written particulars of the essential terms of the employment relationship must be provided.
   
• Alteration in terms and conditions of employment usually requires consent but can, in some circumstances, be compelled by Änderungskündigung.
   
• German employment protection provisions apply after six months' continuous employment in a business employing more than five people in Germany. This is significant for companies with established staff contingents in other countries.
   
• Fixed term contracts on new appointments for periods up to a maximum of twenty-four months are possible.
   
• Holiday entitlement is a statutory minimum of four weeks but in widespread practice six weeks. Untaken holiday is frequently carried over into the following year as standard rather than in accordance with the statutory requirements. This is a bad practice.
   
• An employee unable to work through ill health is entitled to six weeks full payment of salary.
   
• A member of staff dissatisfied with a written warning from the employer as to conduct or performance may apply to an Employment Tribunal Arbeitsgericht for a ruling on whether the warning is justified.
   
• An employer contemplating summary dismissal of a member of staff for gross misconduct must issue the notice of termination within two weeks of learning of the reason giving rise to the possibility of summary dismissal or will be taken to have condoned it. This can produce a very tight time limit where there is a works council Betriebsrat at the workplace. A Works Council must be consulted before any notice of termination can issue.
   
• Certain employees enjoy special protection from dismissal: expectant mothers, parents on parental leave, registered disabled workers, elected members of a works council.
   
• Where employment is terminated, a complaint to an Employment Tribunal must be lodged within three weeks from receipt of the notice of termination, if the employee wishes to challenge whether the termination of employment is socially justified or not.
   
• Termination of employment once protection is acquired is only legally effective where such termination is what is known as socially justifiable. A termination that does not meet this requirement does not terminate the employment relationship at all. Where there is a works council, a failure by the employer to consult that works council before issuing the notice of termination makes that notice an incurable legal nullity.
   
• Co-determination with representatives of the workforce is not confined to larger employers. It can occur in small businesses also, once more than five people entitled to vote in a works council election are employed. Where a works council exists, then certain types of decision affecting the workplace can only be validly taken by the employer with the agreement of the works council.