Under the Job Protection Law, employees enjoy protection against dismissal during military service and military exercises.
The Job Protection Law is a protective law in Germany which, according to the established case law of the Federal Court of Justice (BGH), constitutes a legal norm. It serves to protect an individual natural person or group of persons against the culpable violation of other legal regulations.
The federal law regulates the prohibition of discrimination for employees, home-based workers, commercial agents, civil servants, and judges connected with the calling up for voluntary military service or military training. As a special law with higher-ranking rights, the Job Protection Law interferes with civil service law and labor law.
The notice of call-up for basic military service or military training must be submitted to the employer immediately. The employment relationship is suspended for the service or exercise (special protection against dismissal). After completion of voluntary military service, the former employer must reinstate the person performing military service.
A fixed-term employment relationship will not be extended due to the call-up. The same applies if the employment relationship would have ended for other reasons during this period.
Suppose the notice of convocation is revoked, or the military service is terminated prematurely, and the employer has to pay wages or salaries for two employees for a short period. In that case, he can have the additional expenses not caused by his fault reimbursed by the Federal Government upon application (within six months).
An employee who is doing basic military service or is participating in a military exercise must not suffer any disadvantage in professional or operational terms. (Prohibition of Discrimination, § 5 Job Protection Law)
The Job Protection Law also contains further provisions on, among other things, housing and benefits in kind, recreational leave, crediting of military service, etc.
The employer may not terminate the employment relationship from when the notice of convocation is served until the end of the basic military service and during the military exercise. Furthermore, the employment relationship may not be terminated due to military service.
If an employer has to dismiss employees for operational reasons, the selection process must not be detrimental to the employee. If this reason is suspected, the burden of proof lies with the employer.
The right to terminate for a good cause shall continue to apply. Conscription for military service is not an important reason. An exception applies in companies with five or fewer employees. Unmarried employees with a basic military service of more than six months may be dismissed by the company if, after hiring a replacement, it is not reasonable to expect them to be reinstated after the end of their military service.
The acceptance of a trainee into a permanent employment relationship after vocational training may not be refused on military service grounds. The same applies to the extension or revocation of a time limit for an employee.
Suppose an employee receives a notice of termination after the notification of call-up or during military service. In that case, the periods of information from the Law on Protection from Termination of Employment do not apply until two weeks after military service completion.
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