The COVID-19 crisis poses many challenges for employers and employees alike. It also raises new questions about the cooperation process between employers and works councils and the latter's co-determination. Employers are wondering how best to consult works councils when regular operations are suspended. After all, business needs to continue, which can also mean that personnel measures and other changes need to be carried out – all of which are subject to works council consultation.
In light of the COVID-19 pandemic, more than half a million businesses in Germany have implemented short-time work. The temporary reduction of regular working time allows companies to reduce their personnel costs while maintaining their workforce and avoiding lay-offs. This article provides an overview of the practicable issues that employers must handle during short-time work periods.
In a recent case, the Federal Labour Court once again had to consider an employee's claim for continued remuneration in case of illness. The decision confirmed that an employee's statutory entitlement to continuation of remuneration is limited to six weeks even if they are suffering from an ongoing illness and, during that time, begin suffering from a different illness which also results in their incapacity to work (the so-called 'uniformity of incapacity' principle).
The labour courts regularly consider the enforceability of clauses in employment contracts that declare overtime hours to be deemed compensated by payment of regular remuneration. The fact that lump sum compensation clauses still appear in mostly inadmissible forms potentially results from employers' aim to save the cost of the remuneration and considerable organisational effort. However, lump sum compensation clauses are suitable only to a limited extent and involve a high risk of unenforceability.
An accurate method for calculating leave pay must take into consideration an employee's holiday, sickness, bank holiday and other paid absences; however, this can be burdensome for a company's HR department if its employees earn fluctuating rates of commission. While a certain amount of bureaucratic effort is inevitable, a well-thought-out system and properly trained HR officials will help to minimise complications and avoid negative consequences.
There is a considerable need for external personnel – partly due to the current labour market's limited supply of highly qualified specialists willing to work as employees in some areas and partly due to the increasing demand for flexibility. However, while engaging external personnel allows companies to concentrate on their core competencies and provides easier access to external know-how, it also carries considerable legal and economic risks if handled improperly.