Employment law for public-sector employers

Yes, when it comes to filling public offices, Article 33(2) of the Basic Law generally also covers employment relationships. The decisive factors are suitability, competence and professional performance. The job profile must be appropriate and the selection process must be documented in a transparent manner.

Public sector employers must, as a general rule, invite applicants with severe disabilities and those treated as such to an interview. Under Section 165 of SGB IX, the invitation is not required if the applicant clearly lacks the necessary professional qualifications. A merely lower assessment is not sufficient grounds for this.

Keep a complete record of the selection process and, before making the final appointment, check which notification and waiting period requirements apply. Unsuccessful applicants may seek urgent legal redress. A hasty offer of employment may create additional risks.

Not automatically. A fixed-term contract based on budgetary considerations requires that the statutory conditions be met; funding that is only temporarily secured is not always sufficient. We assess whether there is a valid objective reason or whether the fixed term is permissible without an objective reason.

Where the automatic pay-scale classification system is in force, the pay band is determined by the relevant job characteristics. The staffing plan or budget does not replace this assessment. Permissible allowances and other recruitment measures must be assessed separately.

Ideally, before the tender is issued, the contract is signed or more senior duties are assigned. If a complaint has already been lodged, an urgent application has been made or claims for remuneration have been raised, you should have the selection documents, contracts and specified deadlines reviewed immediately.

As a general rule, the BPersVG applies to federal government departments, whilst the relevant regional legislation applies to regional and local government departments. In the case of publicly controlled companies organised under private law, the BetrVG may apply instead. The legal form and administrative classification must be clarified first.

Only if the applicable law provides for the relevant legal consequence and all the conditions are met. In particular, check that full information has been provided, and the start and end dates of the time limit. Mere silence does not constitute general authorisation to proceed.

This may also be the case even with a limited trial. What matters is the actual use, the functions involved and the employees affected, not whether it is labelled a ‘pilot’. Check the scope of participation and data protection before any real employee data is processed.

Depending on requirements, these may include working hours, breaks, working time accounts, rota planning and availability. Rules must be consistent with operational requirements and employee protection. Statutory requirements, the primacy of collective agreements and permissible derogations place limits on how these arrangements are structured.

Check the grounds, time limits and the further procedure laid down by law. Depending on the case, renewed negotiations, a multi-stage procedure or a conciliation board may be considered. A provisional settlement is only permissible if the relevant legal conditions are met.

Organisational decisions and their individual implications for employees must be examined separately. Even though not every fundamental decision is subject to co-determination, measures such as transfers or changes to working hours may trigger the right to participation. The provisions of the BetrVG cannot be applied across the board.

If employees are unable to work for more than six weeks, either continuously or on repeated occasions, within a single year, a BEM must, as a general rule, be offered in accordance with Section 167(2) of SGB IX. This applies not only in cases of severe disability. Participation requires the consent of the person concerned.

Not automatically. A BEM is not a formal prerequisite for validity. However, if a required BEM is missing, the employer must generally provide a particularly detailed explanation of why no suitable less onerous measures were available. A proper search procedure is therefore important.

In the case of misconduct that is within the employee’s control, a formal warning is generally required as a first step. Exceptions may apply, for example, in the case of particularly serious breaches of duty or where there is clearly no prospect of a change in behaviour. Illness, in itself, does not constitute conduct warranting a formal warning.

In principle, two weeks from the date on which the person authorised to give notice became aware of the relevant facts (Section 626(2) of the German Civil Code (BGB)). Investigations, hearings and any necessary consultation require precise timing. Do not wait until internal discussions have been concluded before carrying out the legal assessment.

Not always. In addition, it may be necessary to involve, for example, the representatives for people with severe disabilities, the equal opportunities officer or the relevant authorities. In cases where special protection against dismissal applies, prior official approval may be required. Involving the staff council does not replace these checks.

Forward any claims and court orders immediately for review. Secure documentation relating to the grounds for termination, the parties involved and the date of receipt. We will assess the risks relating to continued employment and remuneration and work with you to prepare a defence or a legally valid settlement.