Reconciliation of interests with list of names and temporary employees

LAG Cologne, judgment dated 20.7.2015 – 2 Sa 185/15 (final and absolute)

If temporary employees are deployed at a permanent workplace, the presumption, to be derived from a reconciliation of interests with list of names, that the regular employee’s workplace has lapsed and that there is no other possibility of employing him, can be refuted.

The defendant employer implemented a change in business operations in 2014 that resulted in several employees being served with notice of termination. The employer had previously agreed a corresponding reconciliation of interests with list of names with the works council. The list named those employees that were to be terminated for operational reasons – including the plaintiff. Through his legal action, the plaintiff contested the ordinary termination for operational reasons, served on him on June 25, 2014. He claimed that the termination was ineffective as a result of a grossly incorrect social selection. In addition, the employer permanently deployed temporary staff in the company.

Presumption effect of the list of names

As per Section 1 Subsection 5 KSchG (Law on Protection against Dismissal), the law presumes that urgent operational reasons are given for termination if the employee terminated is included in the list of names for a reconciliation of interests. The presumption effect also extends to the non-existence of alternative employment possibilities in the company. Furthermore, in the case of a list of names, the court can only check the social selection in terms of gross incorrectness.

Refutal of the operational reasons as a result of the use of temporary employees

The LAG (State Labor Court) Cologne considered the termination to be ineffective. The permanent use of temporary staff refutes the presumption that the possibility of employment for the regular employee has lapsed. The employer should have freed up one of the permanent workplaces at which temporary staff were deployed, and offered this to the plaintiff.

No facilitated burden of evidence concerning social selection

In addition, the statutory presumption effect of Section 1 Subsection 5 KSchG does not release the employer from the obligation to explain the social selection in detail, if the employee disputes its correctness in substantiated manner during the proceedings. The employer is also required to provide information on the social selection carried out, the criteria applied for this as well as on their weighting, if the employee is included in the list of names for the reconciliation of interests. The uncommented submission of the list of names is not sufficient in this respect. If the employer fails to comply with his obligation to provide information, it can be implied that the social selection was grossly incorrect.

Summary

The reconciliation of interests should state explicitly which plans exist as regards the temporary employees deployed in the company. If temporary employees are deployed in permanent positions, their use must be ended. The workplace freed up as a result must then be offered to the regular employee who would otherwise be dismissed. If several employees are to be dismissed, a social selection must be made among these. The permanent position must be offered to the employee most deserving of social protection.