When are employee benefits required?

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Section 1 (3) KSchG


Employees, which in the event redundancies for operational reasons are not included in the social selection because of their knowledge, skills and achievements or to ensure a balanced personnel structure in the company.

Exclusion from social choice

Before each termination for operational reasons, the employer must make a social selection among comparable employees on the basis of the social data of length of service, age, maintenance obligations and severe disability (Section 1 (3) sentence 1 KSchG). Employees, in particular their continued employment, are not to be included in the social selection

  • because of their knowledge, skills and achievements or
  • to ensure a balanced personnel structure in the company,

is in the legitimate operational interest (Section 1, Paragraph 3, Sentence 2, KSchG). An operational interest is justified if by excluding the Top performers From the social selection, the existing functional and operational processes are to be maintained.

Qualification characteristics

Service providers differ from other employees in:

  • Special knowledge: These include, above all, special school or university degrees, language skills, special specialist knowledge through many years of professional experience, knowledge of handling special machines or manufacturing processes, etc.
  • Special skills: These are special technical qualifications for carrying out special work that is necessary for maintaining operations. The particular flexibility of an employee with regard to his diverse abilities, his spatial mobility or his flexible deployment in terms of time comes into consideration. Management suitability and experience, international activities, a proven and necessary instinct for special customers or for problem solving can be further criteria in the sense of this regulation.
  • Special services: These exist when the employee can work particularly quickly compared to his colleagues, achieves particularly good work results, has extremely low rejects in production, works particularly effectively, etc.

Other considerations to consider

If the employer wants to remove so-called “top performers” from the social selection, he has to consider that the consideration of social aspects is the rule and the exclusion of top performers should remain the exception. In any case, he has to weigh the interests of the socially weaker employees against the interests of the company. The more serious the social interest, the more important the reasons for excluding the service provider must be (BAG of April 12, 2002 - 2 AZR 706/00). The particularly high susceptibility of an employee to illness does not in itself justify any legitimate business interest in continuing to employ another comparable and less vulnerable employee in the social selection process. Something else may apply if, in the case of special work tasks or areas of activity (for example in key positions with key qualifications), a short-term replacement of other employees cannot be organized or can only be organized with great difficulty. The continued employment of certain socially stronger employees may also be necessary if, as a result of a social selection based on purely social criteria, only or essentially only employees with high absenteeism remained in the company (BAG of May 31, 2007 - 2 AZR 306/06) .

In the consultation procedure (Section 102 BetrVG), the employer must, if necessary, inform the works council, without being asked, which employees he has excluded from the social selection as service providers. The employer has to justify the legitimate operational interest in this decision. A proper hearing also includes informing the works council of the knowledge, skills and performance of the employees that are decisive for its decision and whose continued employment there is a legitimate operational interest. If the removal of employees from the social selection serves to ensure a balanced personnel structure, the works council must be informed of their type (e.g. age structure). If the works council is convinced that the interest of the socially weaker employee intended for dismissal is stronger than the operational interest in the continued employment of the employee excluded from the social selection, it can object to the dismissal (Section 102 (3) No. 1 BetrVG).

Erwin Willing

ifb Institute for the Training of Works Councils GmbH & Co. KG

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