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Employment law update: Relevant decisions 2023

Equal pay

BAG ruling from 16.02.2023 8 AZR 450/21

In its ruling of February 16, 2023 (8 AZR 450/21), the Federal Labor Court (BAG) decided that individual salary negotiations cannot justify different remuneration for women and men for the same or equivalent work.

If employees of different genders receive a different salary for the same work or work of equal value, it is presumed under Section 22 AGG that there is pay discrimination on the grounds of gender. This presumption cannot be rebutted by the fact that the higher salary agreed with the employee of the opposite sex was arrived at through salary negotiations within the framework of contractual freedom.

The BAG applies § 22 AGG consistently. The BAG's clear statement that the reference to a candidate's negotiating skills cannot rebut the presumption of disadvantageous pay is central. In general, there are high requirements for proving that unequal remuneration of women and men for the same or equivalent work has nothing to do with gender, but is exclusively due to other, objective reasons. However, this does not mean the end of contractual freedom with regard to salary negotiations. The BAG cites a number of reasons that can justify unequal pay for women and men for equal work or work of equal value.

No prohibition of exploitation in the case of open video surveillance despite data protection violations

BAG ruling from 29.06.2023 2 AZR 296/22

On June 29, 2023 (2 AZR 296/22), the Federal Labor Court ruled in the context of a dismissal protection case that the exploitation of recordings from open video surveillance, which are intended to prove intentional conduct by the employee in breach of contract, is permissible even if it is not fully in line with the requirements of data protection law. Likewise, the court is not prevented from using evidence obtained from the collection of personal data, contrary to a company agreement to the contrary.

The purpose of video surveillance is to prevent risks and to investigate crimes and suspicious circumstances. If it is carried out by the employer at or in the immediate vicinity of the workplace, this always constitutes an infringement of the general personal rights (APR) of the employees concerned. In addition to this circumstance, data protection law is also of central importance. The Federal Labor Court has now confirmed that not every violation of this automatically leads to the video recordings being unusable as evidence before the labor court.

Effective extraordinary termination due to insults on Whatsapp

BAG ruling from 24.08.2023 2 AZR 17/23

On August 24, 2023 (2 AZR 17/23), the BAG ruled that an employee who makes "highly offensive, racist, sexist and inciting violence" comments about other colleagues in a private WhatsApp group can only invoke the fact that a dismissal is invalid due to the confidentiality of the communication in exceptional cases. Rather, in such a case, the terminated party must explain in particular why he could reasonably expect that the content of the communication would not be passed on by any member of the chat group.

The plaintiff was a member of a private WhatsApp group consisting of six and at times seven long-time friends who were employed by the defendant employer. In this chat group, the plaintiff repeatedly made insulting and inhumane comments about superiors and other colleagues. A member of the WhatsApp group showed the chat history to another colleague, who copied it onto his smartphone. The HR manager subsequently found out about the chat messages, whereupon, among other things, the employment relationship with the plaintiff was terminated for cause.

Dismissal for operational reasons in the event of relocation of tasks in a matrix organization

BAG ruling from 28.2.2023 - 2 AZR 227/22

The BAG (February 28, 2023 - 2 AZR 227/22) has clearly rejected tendencies in case law and literature according to which a distribution of tasks within a group of companies does not generally justify a dismissal for operational reasons - rather, the complete relocation of tasks, even if within a group of companies, leads to a discontinuation of the need for employment. As part of a very fundamental rights-oriented balancing of the entrepreneurial rights under Art. 14 GG and the employee rights under Art. 12 GG, the BAG emphasizes that its task is not to ensure a "better or more correct" company organization. The employer is certainly free to implement decisions that are not directly advantageous to the company. The elimination of the possibility of continued employment is to be accepted as long as it is not justified solely by the fact that the conditions of employment should be eliminated. The BAG's reasoning also applies to any purely national organizational decision that leads to the elimination of a need for employment, even if it is not economically compelling. The employee with the burden of proof will seldom be able to plead arbitrariness.


Alexander Möller

Alexander Möller


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