SOCIAL CRITERIA FOR REDUNDANCY

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GERMANY
SOZIALAUSWAHL
SOCIAL CRITERIA FOR REDUNDANCY

In the case of redundancy effected by ordinary termination with notice , the provision of protection against dismissal can be described as a two-stage process. The initial obligation to establish the existence of urgent operational requirements is followed by the obligation to select the particular employee to be dismissed on the basis of "social aspects", i.e. the job loss must first be established as lawful in abstracto and must then be individualized (Protection Against Dismissal Act & 1(3)). In accordance with this principle, the employee selected is the one for whom dismissal will have the least effect. The selection procedure includes all comparable employees in the establishment. Here, "comparable" means employees who are employed in identical jobs or in jobs for which the employee whose former job is being abolished possesses the skills and abilities required. Employees for whom ordinary dismissal with notice is excluded by statute, collective agreement or their contract of employment are exempted.

In the selection procedure, the social circumstances of all comparable employees are weighed against each other in detail. The most important criteria are age, continuous length of service in the establishment and number of dependants. Other aspects are the financial situation and state of health of the employee and their immediate family, and their likely opportunities on the labour market. If, for reasons such as economic or technical requirements, the employer has an interest in retaining particular employees even though on purely social grounds they would be selected for redundancy, this must be taken into account if the reasons are sufficiently important to make the continued employment of the individuals concerned a necessity. Since it is not permissible to evaluate these social criteria on a systematic basis, in practice the selection procedure presents a particular problem in cases of redundancy, which is invalid unless the procedure has been properly followed.


Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.