In its decision of 19 May 2022 (Ref.: 2 AZR 467/21), the Federal Labour Court ruled that the absence of the so-called target information (gender, age, occupation and nationality) of section 17 (3) sentence 5 KSchG does not in itself lead to the invalidity of the mass dismissal notice.
The respondent employer regularly employed more than 20 and less than 60 workers in its business. In the period from 18 June 2019 to 18 July 2019, the employer terminated a total of 17 employment relationships.
In her action for protection against dismissal, the plaintiff employee claimed that the dismissal was null and void under section 134 of the German Civil Code. This was because the employer had not filled in the information required by section 17 (3) sentence 5 of the Act against Unfair Dismissal (KSchG ) in the mass dismissal notification to the Federal Employment Agency (age, occupation, sex, nationality).
Both the Labour Court and the Regional Labour Court considered the dismissals to be invalid due to incorrect mass dismissal notices.
The Federal Labour Court first considered certain parts of the facts of the case as not sufficiently established. It was already not possible to assess whether the employment relationship in question had been terminated in the context of the mass dismissal notice. This was because according to section 17 (1) no. 1 of the Protection against Dismissal Act (KSchG ), the employer must have given notice to more than five employees within 30 calendar days. However, the above-mentioned period had 31 calendar days.
In any case, the dismissal was not null and void under section 134 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) merely because the defendant company had provided the information required under section 17 (3) sentence 5 of the Protection against Unfair Dismissal Act. According to the clear intention of the legislator, a violation of the provision does not lead to the invalidity of the mass dismissal notice. National courts could not disregard such an expression of the legislature's intention by way of interpretation in conformity with the directive.
3 Conclusion and recommendation for action
Any relief for companies from "unnecessary" formalities in the separation process is a relief. Therefore, the decision is to be welcomed. Nevertheless, companies should continue to exercise the greatest possible care with regard to formalities in major staff reduction scenarios.