The Berlin Labor Court recently had to decide a case in which the employer had introduced the 2G rule in the company. This requires employees to be vaccinated or recovered in order to work in the company. Because the plaintiff did not meet these requirements, the employer terminated her during her probationary period. The plaintiff's subsequent unfair dismissal claim was unsuccessful.
Employer introduces “2G model” and terminates
The employee was to work for the employer on the occasion of the musical "Ku'Damm 56." For this purpose, the parties concluded two employment contracts, one relating to the rehearsals for the musical and the other to employment as a performer.
The employer’s employees have demanded that “2G model” in the workplace The employer then decided to introduce the 2G model. The goal was to minimize the risk of infection, protect employees, and ultimately fulfill their wishes.
The plaintiff, however, had no vaccination against the coronavirus and had not recovered either. She offered her employer daily test certificates to prove that she was not infected with the coronavirus. The employer did not accept the employee's suggestion and terminated her employment during the probationary period.
The plaintiff lodged an appeal against the dismissal Dismissal protection suit at the labor court.
Berlin Labor Court considers dismissal justified
The Berlin Labour Court has decidedthat the Employer’s termination of probationary period is legal The employer had not violated the Prohibition of disciplinary action out of § 612a German Civil Code by reacting to the plaintiff's lack of vaccination with dismissal.
According to Section 612a of the German Civil Code (BGB), an employer may not discriminate against an employee in an agreement or measure because the employee exercises his or her rights in a permissible manner (Prohibition of disciplinary action). The Court first of all emphasized that the exercise of fundamental rights must also be recognized as an exercise of rights within the meaning of this provision.
The plaintiff also exercised her fundamental rights, as she declared to her employer that she wished to carry out her work without having been vaccinated. The plaintiff thus exercised her fundamental rights in the form of her General personal rights after Article 2 paragraph 1 GG in conjunction with Article 1 paragraph 1 GG as well as their Right to physical integrity pursuant to Article 2, Paragraph 2 of the Basic Law. However, the court held that the employer did not discriminate against her on this grounds.
No discrimination – 2G model causal for dismissal
There is a lack of Causality between exercise of rights and discrimination, because the exercise of their rights by the plaintiffs was not the main motive for the decision to terminate the employment. Rather, the decision to terminate the employment was based on the entrepreneurial decisionto introduce and implement the 2G model in the company.
This business decision cannot constitute a disciplinary measure, also because an inadmissible motivation of the employer cannot be considered if it is based on business considerations build.
Furthermore, the employer’s business decision cannot be legally challenged:
- It is no violation of the General Equal Treatment Act because the rejection of the corona vaccination is not based on a particular worldview.
- The employer’s lack of right to information about vaccination status only affects the feasibility, but not the Legality of the business concept.
- The The requirement profile is also not arbitrary, as a 3G model would have a greater impact on operations than a 2G model and the quarantine consequences would be more severe with a 3G model.
- The entrepreneurial freedom allows the employer to take measures that Occupational health and safety go beyond the legal minimum.
- The plaintiff did not demonstrate any lack of or inadequate implementation of the employer's 2G concept.
The parties may appeal to the State Labor Court.
Assessment of the decision of the Berlin Labor Court
What is the legal implications of the Berlin Labor Court's decision? The ruling undoubtedly strengthens employers' entrepreneurial freedom to implement occupational health and safety measures related to the coronavirus. However, the decision raises legal concerns.
First of all, the Context of the decision The Labour Court has issued a decision on the occasion of a Probationary period termination The Dismissal Protection Act did not apply, which is why the court only examined whether Violation of the prohibition of disciplinary action according to § 612a BGB.
However, in my opinion, further insights can also be drawn from the decision. The way in which the court reasoned within the framework of the prohibition of disciplinary measures leads to the conclusion that disguised examination of a social justification at the level of the business decision. However, this should generally only be made if the Dismissal Protection Act also applies.
The court draws parallels to dismissal for operational reasons and examines the entrepreneurial concept for arbitrariness and takes a Balancing conflicting fundamental rights positions before. In other words: I think that if there had been protection against dismissal, the labor court would have found that the dismissal was socially justified.
Can the employer really order 2G and then terminate the contract?
Whether the Berlin Labor Court's decision is legally correct or not must be assessed based on the conflicting fundamental rights positions. The court concluded that entrepreneurial freedom deserves priority in the present case. The plaintiff's legal positions—protection of general personality rights and physical integrity—must take a back seat, the court held.
This The court’s opinion is questionable, because the weight of entrepreneurial freedom could be overemphasized in the context of the balancing of interests. The court rightly examines whether the employer's entrepreneurial freedom is truly worthy of protection in the case at hand. It therefore considers whether the business decision arbitrary Even in the case of dismissal for operational reasons within the scope of the Dismissal Protection Act, the entrepreneurial decision may not „manifestly irrelevant, unreasonable or arbitrary„ be.
The question arises as to why the court is only examining the issue of arbitrariness. The company's decision may withstand an arbitrary review because it was based on a request from the workforce. However, whether it is based on a Objectivity and reason test withstands is a different matter.
Because the legislator has made it mandatory for employers to ensure that 3G model At the same time, he expressed that this model is sufficient to achieve an adequate level of protection against coronavirus infections.
Also the scientific findings provide no evidence that the 2G model would significantly reduce the risk of infection compared to a 3G model. Against this background, doubts arise as to whether the employer's business decision stands up to a review of objectivity and reasonableness. This is especially true in view of the resulting impairment of the fundamental rights of the plaintiff, who was affected by the dismissal.
All in all, the decision of the Berlin Labor Court is at least debatable.
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