The Employment Law Review: Germany

Introduction

The German labour and employment law system is generally intended to protect the employee. The system is not codified separately but can be found in various (German and European) laws, regulations, collective agreements and works agreements. It is also very much determined by case law. Apart from at the European level, jurisdiction for labour and employment law is exclusively exercised by the local labour courts, regional labour courts and the Federal Labour Court.

A particular feature of German labour law is the dual system of employee representation: works councils elected by employees represent their operational interests at the entity or company level; and trade unions represent employees' overall interests at the industry level.

Year in review

i Continued effects of the covid-19 pandemic

The pandemic continues to affect the employment sector and create challenges for both employer and employee.

The employer does not usually have the right to enquire about an employee's vaccination status, although this excludes employees at certain medical facilities, such as hospitals.2 However, in the current pandemic, employers may also ask about their employees' vaccination status if the company falls under the newly adopted Section 36, Paragraph 3 of the German Infection Protection Act. This covers day care centres and nurseries, for example.

To ensure that works councils can continue their work during the pandemic, a temporary regulation was introduced that allowed digital meetings in the form of a video or telephone conference. This temporary regulation has now been replaced by a permanent regulation in the Works Constitution Act.3

From 1 January until 31 July 2021, the Occupational Health and Safety Ordinance required employers to allow employees to work from home. In light of the current infection figures, this is once again the case from 24 November 2021 until 19 March 2022. At the same time, legislation proposed by the Federal Ministry of Labour and Social Affairs to regulate working from home was rejected. Furthermore, the works council was recently granted co-determination rights regarding remote working and mobile working under the Works Constitution Act.4

ii New law promotes gender equality in leadership positions

A new law on the equal participation of men and women in leadership positions entered into force in August 2021 with the aim of promoting gender equality. This law includes a new mandatory quota of women at private listed companies in Germany. In future, a management board with more than three members must include at least one woman. This mandatory quota has superseded the previous voluntary system. However, existing mandates for the executive board can remain in place until their scheduled expiry.

The minimum quota is even stricter for companies in which the federal government holds a majority share: at these companies, the management body must be composed of at least one woman and one man, regardless of whether the company is listed on the stock exchange or not.

iii New framework governing artificial intelligence

Artificial intelligence (AI) technology has steadily advanced, leaving legislation trailing behind. However, in recent months, Germany has taken a step forward in regulating the use of AI. The Works Constitution Act, for example, now contains a new co-determination right for employee representatives concerning AI and the right of a works council to consult an expert if a company uses AI. Nonetheless, concerns about the laws on anti-discrimination remain, especially regarding the application process. Since an algorithm learns from the data it receives, it can adopt inherent biases. If the data that the algorithm receives is unintentionally biased because, for example, a company has in the past hired more employees from a particular ethnic group and this data is fed to the algorithm, it will automatically select more résumés of those members from the same group. Furthermore, the use of AI can cause problems with regard to data protection in the workplace.

The European Union has also recognised these risks and the EU Commission has proposed a new legal framework that aims to regulate AI and limit its risks – particularly in a human resources context. The EU Commission's goal is to ensure people's safety and to safeguard their fundamental rights regarding the specific use of AI. The proposal sets out a nuanced regulatory structure that bans some uses of AI, aims to heavily regulate 'high-risk uses' and could marginally regulate less risky AI systems.

iv Effects of the whistle-blower directive in Germany

Directive(EU) 2019/1937 on the protection of persons who report breaches of EU law entered into force in December 2019, to be implemented by Member States by 17 December 2021. The draft of the Whistle-blower Protection Act, introduced by the Federal Ministry of Justice, provided stronger protection for whistle-blowers than the EU Directive, for example by not only covering violations of European law but also violations of German law. Since April 2021, it has been evident that this draft of the Whistle-blower Protection Act would not be implemented within the deadline. Hence, there is a legitimate question about the legal consequences:

  1. The European Commission or another Member State could initiate an EU infringement proceeding before the Court of Justice of the European Union (CJEU) owing to Germany's failure to fulfil an obligation under the treaties. Every Member State is contractually obliged to implement EU Directives into national law within the deadline. By missing the deadline, Germany is in breach of this obligation.
  2. The Directive is not directly applicable in Germany and, thus, a whistle-blower cannot directly invoke it against the employer. However, the whistle-blowing employee could demand that the court interpret German law in the light of the EU Directive so as to give the provisions of EU law the highest possible effectiveness in accordance with the principle of effet utile.
  3. Additionally, an employee could also invoke the fundamental EU right on which the Directive is partly based; namely the right of freedom of expression and information under Article 11 of the EU Charter of Fundamental Rights. Hence, the employee could demand that his or her fundamental EU rights and, thus, his or her rights under the Directive be adhered to within the employment relationship and the employee's action against unfair dismissal.

However, the protection of whistle-blowers is not without limits: in February 2021, the European Court of Human Rights had to decide a case concerning a German doctor who was dismissed after reporting a suspicion of voluntary euthanasia in a hospital. The Court ruled that the dismissal was lawful as the doctor should have examined the evidence justifying the suspicion before reporting it.

Significant cases

i Action for equal pay – presumption of discrimination on grounds of gender

According to the Transparency in Wage Structures Act, male and female employees must receive equal pay for work of the same, similar or equal value. Pursuant to Section 10 of the Act, an employee can demand information about the average monthly gross remuneration to determine whether the company he or she works for provides equal pay.

In a case before the Federal Labour Court, a female employee requested information from her employer in accordance with Sections 10 and 11 of the Transparency in Wage Structures Act. In response to her request, she received the statistical median of the average monthly gross remuneration from her employer. However, this indicated that the comparative pay of male colleagues was higher than that of the female employee requesting the information, both in terms of basic pay and bonuses. The Court ruled that the employee has a claim to equal pay based on the directly applicable Article 157 of the Treaty on the Functioning of the European Union or Section 3, Paragraph 1 or Section 7 of the Transparency in Wage Structures Act. The fact that the employee received lower wages than the statistical median of her male colleagues justifies the presumption that the employee experienced discrimination because of her gender. Unless the employer can provide an objective justification, it will be ordered to pay the difference. In June 2021, the CJEU confirmed that employees can directly rely on this principle of equal pay in legal disputes between private parties.

ii Right to access personal data under the GDPR must be sufficiently specified

According to Article 15 of the General Data Protection Regulation (GDPR), employees have a right to access their personal data. However, employees who have been dismissed have been asserting extensive claims under Article 15 in unfair dismissal proceedings with the sole intent of putting pressure on their employer.

In the case at hand, an employee who had been dismissed demanded copies of all email correspondence not only between him and his employer but also copies of all emails in which he was mentioned personally. The regional labour court ruled that email correspondence between an employer and a terminated employee was to be excluded from the claim as this correspondence was already known to the employee. The Federal Labour Court affirmed this decision and also stated that the employee's claim regarding further correspondence mentioning the employee had to be sufficiently specific. However, this was not the case. Therefore, companies can reject generalised claims for copies of all emails. Unless the requested emails are specified in greater detail, the claim will be rejected.

iii Legality of a prohibition on wearing a headscarf at work

The question of whether an employer is allowed to prohibit an employee from wearing a headscarf at work has been brought before the CJEU by the Federal Labour Court. The underlying cases concerned two employees, a pre-school teacher and a cashier, who wore an Islamic headscarf at their respective workplaces and were reprimanded for doing so.

The CJEU held that a prohibition of wearing a headscarf in the workplace can constitute indirect discrimination under EU law. However, this unequal treatment can be justified if the employer has a 'genuine need' for the employee to signal political or religious neutrality to customers. In the case of the pre-school teacher, the CJEU held that parents have a legitimate interest or expectation that the childcare provider demonstrates religious neutrality as it is their right to decide on their children's religious upbringing. However, given the strict requirements, this will rarely be the case.

Nonetheless, the CJEU emphasised that national provisions protecting the freedom of religion may be considered as more favourable. In this regard, each Member State is permitted a margin of discretion when reconciling freedom of religion with the legitimate interests of the employer. Both the Federal Labour Court and the Federal Constitutional Court have ruled in the past in favour of religious freedom and have declared a prohibition on wearing a headscarf as unlawful.

iv No remuneration during lockdown

In Germany, employees can still claim their remuneration if the employer is in default of accepting the work performance. This also includes cases where the business has to be closed owing to an operational risk occurring in the sphere of the employer, such as in the case of fire damage.

In the case at hand, the employer had to close the company because of the Corona General Order issued by the Free Hanseatic City of Bremen in March 2020. As a consequence, the employee was unable to work and, thus, did not receive any wages. In its decision, the Federal Labour Court ruled that no remuneration was payable owing to default in acceptance if the workplace is closed because of a national lockdown during the covid-19 pandemic. The employer does not bear the risk of lost work if the workplace has to be closed because of a lockdown. The inability to perform work is the result of a measure taken by the state to address a dangerous situation affecting society as a whole and not the result of an operational risk inherent to the particular company. Accordingly, it is the responsibility of the state to provide adequate financial compensation for the disadvantages suffered by employees as a result of the measure.

Basics of entering an employment relationship

i Employment relationship

An employment contract is not subject to any form. Although it may be concluded expressly or implicitly, orally or in writing, it is customary for an employment contract to be in writing. The employer is nevertheless required by law to provide the employee with a wet-ink signed written statement that includes the most important terms and conditions.

German employment contracts usually contain very comprehensive agreements in respect of, among other things:

  1. wages;
  2. working hours (part-time or full-time);
  3. position;
  4. annual leave entitlement;
  5. illness;
  6. termination notice periods;
  7. data processing; and
  8. confidentiality.

If individual contractual conditions have not been specifically negotiated by the parties, they represent standard business terms. This leads to unclear, disproportionately disadvantageous or surprising clauses always being interpreted at the employer's expense or even being declared ineffective. Individual contractual agreements can only be changed by mutual consent.

It is also possible to conclude fixed-term employment contracts. However, both parties must have received a written contract (wet-ink signed by both parties) for the fixed term to be effective before the employee starts working. The fixed term can be based on objective reasons or can be concluded without reasons. Fixed-term employment based on a reason can be extended indefinitely. The reasons (such as providing cover for another employee or working on a temporary project) are defined by law and subject to very high requirements. A fixed-term contract not based on objective reasons can be renewed only up to three times for a total of two years. Furthermore, the employee must not have been employed by the same employer before.

ii Probationary periods

Probationary periods are common in Germany. For this purpose, a fixed-term contract for evaluation reasons can be agreed. Alternatively, a contractual agreement of a probationary period for a maximum of six months is also possible. During this time, the employment relationship can be terminated on two weeks' notice without providing reasons.

iii Discrimination

According to the Basic Law and the General Equal Treatment Act, discrimination and preferential treatment against any individual on the basis of sex, parentage, race, language, homeland and (ethnic) origin, faith, religious or political opinions, disability, age or sexual identity are prohibited. This applies to direct or indirect discrimination against applicants and current employees. Violations can lead to claims for damages, among other consequences.

To promote gender equality further, Germany has enacted a new law on the equal participation of men and women in leadership positions (see Section II.ii). Additionally, male and female employees must receive equal pay for work of the same, similar or equal value, according to the Transparency in Wage Structures Act. If an employee receives a lower remuneration than the statistical median of the average monthly gross remuneration, he or she is entitled to payment of either the difference or the same remuneration (see Section III.i).

Restrictive covenants

To protect valuable knowledge, employers will often require restrictive covenants from their employees. Because of their strict legal requirements, non-compete agreements can be very problematic since they are valid only if they adhere to the following legal requirements:

  1. the clause must be in writing;
  2. the restrictive covenant must serve to protect legitimate business interests;
  3. the clause must be limited to the extent necessary, so the employee is not unreasonably hindered in his or her professional career;
  4. the clause must be transparent;
  5. compensation of at least half of the most recent remuneration must be given; and
  6. the maximum duration is two years.

Wages

i Act Regulating a General Minimum Wage

The German legislature has implemented the Act Regulating a General Minimum Wage. Each year, the minimum wage will be increased to ensure a minimum standard for every profession and to prevent disproportionate payment. As of 1 January 2022, the minimum wage is €9.82 gross, which will increase to €10.45 gross as of 1 July 2022.

The Act applies only to employees, not self-employed people, trainees or apprentices. An employer who violates the Act by not paying the minimum wage will be subject to a fine.

ii Working time

According to the Working Time Act, the maximum working time is eight hours a day or 48 hours per week for a six-day working week. There are exceptions for certain professions, such as restaurants, hotels, hospitals and other healthcare institutions. An employee is entitled to 11 uninterrupted hours of rest after each working day, although certain exceptions apply.

Special regulations also apply in respect of night work.

Any contractual clauses that violate the Working Time Act are void.

iii Overtime

Employees are generally allowed to work overtime as long as the above-mentioned working time regulations are adhered to. As compensation, employees may receive extra remuneration or time off. This is often regulated by collective agreements, which vary depending on the respective industry. It is also common and legal to identify overtime of up to 20 hours per month to be compensated by the normal rate of pay. The only limitation is set by the minimum wage, which must be fulfilled despite this common practice. In the case of very high earners, no overtime compensation is required at all.

Foreign workers

Regarding foreign workers, two circumstances must be distinguished. There are no restrictions for EU citizens or citizens of the European Economic Area (EEA) and Switzerland. They are allowed to work in Germany without needing a work permit, whereas foreign workers from third countries generally need a work permit and a residence permit. The possibility of obtaining the necessary permits depends on the qualifications of the employee and the type of job. For example, the permit in the form of an EU Blue Card is the main residence permit for professionals with higher education from abroad. The EU Blue Card is granted in a simplified procedure if the applicant has a university degree and will be earning a minimum gross salary of €55,200 per year in the new job.

Generally, the parties are free to choose whether German law (e.g., the Protection Against Unfair Dismissal Act) or the law of the worker's home country should govern the employment relationship. Nonetheless, mandatory regulations for the protection of employees in Germany apply, regardless of the choice of law.

Foreign workers are also integrated into the German social security system. They are generally obliged to pay taxes and social security contributions.

Global policies

Companies in Germany can use an employee handbook or company policies (or both), for example in respect of whistle-blowing, monitoring at work or anti-corruption measures. To be binding, the handbook or policies (or both) must be incorporated in the employment contract by reference and must be signed by the employee. However, they are not customary and cannot be changed unilaterally by the company. There are no statutory disciplinary and grievance procedures in German labour law. Furthermore, there is no requirement for an employer to adopt a formal disciplinary or grievance procedure. Nonetheless, employers may sanction conduct that is contrary to the contract. Reprimands, warnings, fines and dismissal are all possible sanctions.

Parental leave

During the last six weeks of pregnancy and for eight to 12 weeks following the birth of a child, pregnant employees are entitled to paid maternity leave. Pregnant and breastfeeding employees are not allowed to work overtime and are entitled to additional breaks for breastfeeding.

After the birth, employees (both mother and father) are entitled to up to three years of unpaid parental leave, during which they can receive a state parental benefit for a maximum of 14 months.

Employees on maternity leave and parental leave are subject to special protection against dismissal. An employee may be dismissed only in exceptional cases and with the consent of the highest state authority responsible for occupational safety.

Translation

Although international companies often use bilingual contracts, this is not a legal requirement. A contract in German is sufficient. If an employee signs a German employment contract, he or she accepts it. This is irrespective of whether he or she has sufficient command of the German language.

Employee representation

i Works council

The main instrument for employee representation is the works council, which serves as a binding link between the employer and the employees. Therefore, the employer and the works council must work together in a spirit of mutual trust.

The works council has a multitude of co-determination rights regarding the personal, social and economic decisions made by the employer in respect of the right to:

  1. comprehensive information;
  2. be heard;
  3. be consulted;
  4. lodge an objection (e.g., when an employee is dismissed); and
  5. refuse consent regarding individual staff measures.

Compliance with co-determination rights by the employer can be enforced, for instance by establishing a conciliation committee.

One of the main focuses of the works council is on negotiating works agreements with the employer that constitute normative rights and obligations between the employer and the employee. These agreements can concern every aspect of the employment relationship, such as annual leave entitlement or working time.

Works council members are released from their duties to carry out council activities. In companies with more than 200 employees, members of the works council must be released from their duties full-time. Although holding office on a works council is an honorary position, council members must receive their normal wages.

Since the works council itself does not have any assets of its own, the employer must cover any expenses that arise in the performance of the works council's duties (such as office supplies). This obligation is interpreted extensively by the labour courts.

Works council members, former members and those employees who were candidates for election are subject to protection against retaliation by the employer. This particularly includes special protection against dismissal.

A works council can be elected if there are at least five employees in the establishment. Nonetheless, no legal obligation exists for the employer or the employees to establish a works council. The number of members depends on the number of employees in the respective establishment. Once the works council is elected, the regular term of office is four years.

If a company has more than one establishment in Germany, a central works council must be created. In a corporation, a group works council can be established.

ii Unions

Another instrument for employee representation is a union. The main purpose of unions is to be an equal counterpart to the employer and to negotiate collective agreements. Clauses in collective agreements may deviate from many otherwise mandatory laws; they also have normative effect. If an employer refuses to negotiate collective agreements, the union can force the employer to do so by calling on the employees to strike.

Unions enjoy special protection under Article 9, Paragraph 3 of the Basic Law.

Data protection

i Requirements for processing

Article 88 of the GDPR provides for EU Member States to regulate nationally the processing of data in the employment relationship. Germany has exercised this in Section 26 of the Federal Data Protection Act, which regulates if and under which conditions an employer may process its employees' data. In summary, the employer is allowed to process employees' data:

  1. if an employee has explicitly given informed consent in written or electronic form (albeit the consent can be revoked);
  2. for employment-related purposes to carry out or terminate an employment contract; and
  3. for the process of hiring the employee.

When processing an employee's data for employment-related purposes, the processing must be necessary. Therefore, it must be proportionate in relation to the infringement of the employee's right to privacy.

Furthermore, the processing of data is permitted for the investigation of a crime. However, this is a very limited exception and is only permitted after extensive balancing of the employer's and employee's respective interests.

When the regulations for data processing are violated, an administrative fine will be imposed by the competent supervisory authority. Fines have become much more common. For example, H&M (the globally recognised fashion brand) was fined €35.3 million in October 2020 for excessive monitoring of several hundred employees.

ii Cross-border data transfers

Two different sets of circumstances exist in respect of transfers of data to other countries.

In respect of transferring data to another recipient within the European Union or the EEA, since the main purpose of the GDPR is to have a uniform data protection level, the same regulations for data processing apply in each EU Member State. Thus, no prior authorisation from the supervising authorities is required.

Transfers of data to a third country is allowed only if there is an adequate level of protection in the country concerned. There are three main grounds for such a transfer:

  1. an adequacy decision by the European Commission according to Article 45 of the GDPR;
  2. it is subject to appropriate safeguards according to Article 46 of the GDPR, such as the Standard Contractual Clauses (Paragraph 2(c)), which have recently been renewed by the EU Commission; or
  3. one of the conditions under Article 49 of the GDPR applies (e.g., explicit consent by the data subject).

Additionally, in July 2020, the CJEU declared in its Schrems II ruling that the data protection agreement on the transfer of personal data between the European Union and the United States (the Privacy Shield) fails to meet the requirements of the GDPR.

iii Sensitive data

Data concerning health or racial or ethnic origin can be processed only if the extensive conditions of Article 9, Paragraph 2 of the GDPR and Section 26, Paragraph 3 of the Federal Data Protection Act are met. The processing must be necessary to exercise rights or comply with legal obligations regarding labour or social law (e.g., for continuing remuneration in cases of sickness). The employer also needs to consider whether the employee has an overriding legitimate interest to not process the data. Alternatively, the data subject can give explicit consent for the processing of data.

iv Background checks

Background checks on prospective employees also fall within the scope of the GDPR and Section 26 of the Federal Data Protection Act. They are allowed when the employer has a legitimate interest that is worthy of protection. For example, if the work is in respect of financial matters, the employer is allowed to collect data about a candidate's criminal record before entering the employment relationship.

Concerning the question of whether the employer may collect data through social media, two types of social media networks have to be distinguished from each other. If the employee has publicised his or her information on professional social media networks such as LinkedIn, the employer can use this information. Nevertheless, the employer should not use private social media networks such as Instagram or Facebook, unless the data subject has explicitly given consent.

v Employee monitoring in the workplace

In general, an employer is allowed to check regularly whether its employees are fulfilling their contractual obligations, for instance by enquiring about their progress, according to Section 26, Paragraph 1 of the Federal Data Protection Act. Secret monitoring or controlling, however, when an employee is purposefully left in the dark about the monitoring measures or their scope regularly constitutes an infringement of employees' right to privacy. These measures are allowed only in exceptional cases, such as to investigate a criminal offence at the workplace if less severe means have proven ineffective.

Discontinuing employment

i Dismissal

In principle, extraordinary dismissals (without notice) and ordinary dismissals (with notice) are possible.

In the case of extraordinary dismissals, there must be a serious reason (i.e., a fundamental breach of the employment contract) that makes it unreasonable for the employer to continue to employ the employee. This could be the case regarding assault in the workplace, insults, theft of employer property or working time fraud. Once an employer has knowledge of a serious reason for terminating an employment contract, it must declare the termination within two weeks. In principle, a warning must have been issued beforehand, but exceptions are possible.

In the case of ordinary dismissal, the employee can be dismissed only with a cause, whether it be for conduct, personal reasons or operational reasons. There are different requirements for each of these reasons:

  1. A conduct-related dismissal is based on breaches of contractual obligations. A prior warning is required and it must indicate the unlawful behaviour, that the employer will not tolerate it and that it can lead to dismissal if it is repeated.
  2. A termination for personal reasons is possible, for example, if the employee is unable to work because of sickness.
  3. An operational dismissal applies when an employee's job or position is redundant (see Section XIII.ii).

In all these cases, dismissal must be the last resort and must be proportionate. Accordingly, if any suitable alternative employment is available, that must be offered first.

The only cases when no cause is required for dismissal are during a probationary period or if the employer has fewer than 10 employees.

Moreover, regarding an ordinary dismissal, there are statutory notice periods. These vary depending on the length of service. The shortest notice period is four weeks to the middle or the end of the month; the longest is seven months to the end of the month after 20 years of employment. Regarding dismissal by the employer, the notice period can only be shortened in exceptional cases, such as in the context of collective agreements or in a termination agreement. Nonetheless, the notice period can be extended by both parties. However, no longer period may be agreed for termination of the employment relationship by the employee than by the employer. Payment in lieu of notice is not permissible. If a works council exists, it must always be consulted before dismissals.

There are many options for special protection against dismissal, with regard to severely disabled or pregnant employees, employees on parental leave, employee representatives and apprentices, among others.

A severance payment is not generally mandatory in Germany. Nevertheless, a severance payment can be agreed in the form of a termination agreement or a settlement. Usually, the monthly gross salary multiplied by the number of years of employment multiplied by a factor of 0.5 is paid. The severance payment can be higher or lower, depending on the respective agreement.

ii Redundancies

Redundancies are one of the reasons for termination of employment agreements mentioned above. If a company is shut down, a company reorganisation takes place or a job is outsourced, an employee can be dismissed for operational reasons. An entrepreneurial decision is required in this regard. In addition, comparable employees must be selected according to certain criteria, meaning that the employer has to consider each person's:

  1. age;
  2. number of dependants or family maintenance obligations;
  3. seniority; and
  4. disability (if any).

Only the employees least worthy of protection may be dismissed. Furthermore, a possible transfer to a different position or reinstatement must be considered beforehand. If redundancies for operational reasons are part of a restructuring and exceed certain thresholds, a social plan must be agreed by the existing works council and a reconciliation of interests must be attempted. In the case of mass dismissal, the works council must be involved and informed. Additionally, the employment agency must be notified, otherwise the dismissals are ineffective.

Transfer of business

If a business or part of a business is transferred to a new owner while maintaining its identity, this represents a transfer of business or undertaking (as provided for in the Transfer of Undertakings (Protection of Employment) Regulations 2006). If such a transfer takes place, the employment relationships are also transferred. This means that all previous regulations in the employment contracts remain in place in the new company. Either the previous management or the new company must notify the employees of the transfer. This notification is subject to strict requirements. Employees can prevent their transfer to the new employer by objecting within one month of the notification. If the notification requirements are not met, the employees can object to the transfer far beyond the one-month period. By objecting, the employees can remain at their original company, but the employer may have the right to dismiss them on the ground of redundancy. Nonetheless, the transfer of business itself is not a reason for termination of employment contracts.

Special regulations apply in respect of the provisions of a collective agreement or a works agreement, which can lead to either continued individual or collective application.

Outlook

Following the federal elections in Germany, coalition negotiations remain a work in progress. Nonetheless, it is already foreseeable that some of the familiar issues and legislative proposals from the previous legislative period will return. In particular, these include the Whistle-blower Protection Act and the Corporate Liability Act, which were both rejected in spring 2021. Furthermore, it is also likely that the rejected draft regulating working from home will return to the agenda. Further changes can also be expected with regard to the minimum wage as this is one of the main promises and concerns of the Social Democratic Party, which took the largest share of the vote and is the largest party in the new German parliament. Exactly when and how these proposals will come back is not yet foreseeable. However, it is worth being prepared.

An important topic for the coming year will be the new Supply Chain Due Diligence Act, better known as the Supply Chain Act. This was adopted in July 2021. As of 2023, the new law will require companies with more than 3,000 employees (as of 2024, companies with more than 1,000 employees) to implement a risk management system and carry out a risk analysis and also to take preventive and remedial measures. With regard to labour law, there will be a particular emphasis on the suppliers' working conditions. Maintaining fair labour standards throughout the supply chain will become a corporate responsibility. More specifically, this includes occupational health and safety, the prohibition of child and forced labour, and the guarantee of trade union organisation.

Another important topic is possible mandatory vaccination in the employment area. Currently, there is neither a legal nor a contractual obligation for employees to get vaccinated. However, this could change in the coming months in view of the covid-19 infection rates at the time of writing and the number of unvaccinated persons. Although a general obligation to get vaccinated is difficult to be justified under the German Constitution, a partial obligation for a certain group of employees is being considered. The German Ethics Council has already recommended mandatory vaccinations for medical personnel and has also urged the German government to consider such an obligation. Accordingly, a legal or at least contractual vaccination obligation could soon be imposed on medical staff and comparable groups of employees.

Footnotes

1 Jan Tibor Lelley is a partner, Julia M Bruck is a lawyer and Diana Ruth Bruch is a trainee lawyer at Buse.

2 German Infection Protection Act, Section 23, Paragraph 3.

3 Section 30, Paragraph 2.

4 Section 87, Paragraph 1, Nr. 14.

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