German Employment Law: Quick-Read updates for 2018

Statutory minimum wage

From 1 January 2018 the statutory minimum wage now applies without exception in all sectors. Previously, variations in collective agreements were permitted under certain conditions which had the result of being under the minimum wage. These are no longer permitted. 

The minimum wage itself on the other hand has not changed and is expected to be adjusted as of 1 January 2019.

Federal Participation Act (“BTHG”)

On 1 January 2018, the second of four stages of the reformation process of the Federal Participation Act came into force, entailing the following changes:

The term “disability“

The term “disability” has been adjusted according to the rules of the UN Convention on the Rights of People with Disabilities. The new definition stipulates:

“People with disabilities are people who have physical, mental or sensory impairments which, in interaction with various barriers, whether environmental or attitudinal, may hinder their full and effective participation in society for more than six months.”

Representative Body for Severely Disabled Employees

Since 1 January 2018, the law provides that the Representative Body for severely disabled employees has to be involved prior to a disabled employee's termination. Additionally, the same regulations apply to representatives of severely disabled persons as to works councils in the event that the existence or responsibilities of the company are impaired as a result of changes in organisational structures. 

Reform of the Maternity Protection Act (“MuSchG”)

From 1 January 2018, the Maternity Protection Act "MuSchG" has been expanded to include pregnant women and mothers at work, in education or in studies. It integrates the previous regulation on the protection of mothers at work (MuSchArbV).

Scope of application 

The change extends the application of the regulation so that pregnant women and mothers who are pupils, apprentices, trainees, interns or students will also be covered by maternity protection. For other groups of women, which are listed in Para. 1 MuSchG, such as freelancers and managing directors, this law applies as well.

Employment protection 

As a general rule, a pregnant or breastfeeding woman may not be employed on Sundays, public holidays and between 8pm and 6am, irrespective of sector. Under certain conditions and with official approval, the woman may work after 8pm, until 10pm. However, an application is required and she must expressly agree. During the official examination of the application to work after 8pm, the woman may continue to be employed. If the application is not rejected within six weeks, it will be considered as approved. 

Under the reforms, all employers must carry out independent risk assessments for every position available in the company (whether filled by a female or not and irrespective of whether they are vacant or not) with consideration to the type, extent and duration of any risks to pregnant or breastfeeding women, as well as to the child itself. As there is no designated time frame, the risk assessment has to be conducted in sufficient time in order to select potential protective measures. It has to be repeated periodically and protective measures are to be monitored. 

Protection against unfair dismissal

Protection against unfair dismissal was extended to women miscarrying after the twelfth week of pregnancy, so that they receive four-month protection against unfair dismissal.

Furthermore, the term of unfair dismissal protection was extended from eight to twelve weeks after the birth of a child with disabilities.