Update Employment Law April 2023
The probationary period is for testing the employment relationship - social data is not to be taken into account by the employer in the event of termination due to a lack of consideration of interests.
LAG Mecklenburg-Western Pomerania, October 26, 2022 - 3 Sa 79/22
In the case of a termination during the probationary period, the (subjective) negative assessment of the employee's work perfor-mance is the only thing that matters, so that social data does not have to be disclosed to the staff council.
Employers must ensure that the signature on termination notices is identifiable. The law does not require a legible signature.
The parties dispute the validity of an ordinary termination within the probationary period. The plaintiff was employed as head of depart-ment at the defendant. After the defendant had asked its staff council for approval regarding the intended ordinary termination of the plain-tiff during the probationary period, the council objected to the termina-tion. The plaintiff had not been notified of her social data. The subse-quent letter of termination was signed by the deputy head of the Hu-man Resources department with the addition "p.p.". The latter was authorized to sign. The plaintiff rejected the notice of termination on the grounds that there was no proper authorization to issue notices of termination and brought an action for unfair dismissal.
The Stralsund Labor Court dismissed the action.
The Mecklenburg-Western Pomerania Regional Labor Court dismissed the plaintiff's appeal against this decision. The dismissal did not fail due to an incorrect hearing of the staff council, nor was it invalid in form. Furthermore, there is no obligation on the part of the employer to provide the staff council with social data in the event of a termination during the probationary period. The purpose of the probationary period is to allow the employer the opportunity to form a subjective opinion about the employee's performance and conduct. This is in principle not subject to judicial review according to objective standards. During this probationary period, the employer can freely terminate the employment relationship - i.e. without social justification according to the German Dismissal Protection Act - without having to take into account the conflicting interests of the employee, so that there is also no obligation to disclose social data to the staff council.
The notice of termination is also valid in form. It is sufficient if there is writing that sufficiently reveals the identity of the signatory and has features that make imitation difficult. Sections 623 and 126 of the German Civil Code do not require the signature to be legible.
Finally, the Regional Labor Court also assumed that the plaintiff was already aware of the authorization of the head of department before the notice of termination was issued. The Regional Labor Court states in this respect that it is sufficient with regard to Section 174 sentence 2 of the German Civil Code if the employer has appointed the person giving notice to a position that is usually associated with the right to give notice.
These principles can be applied to companies with a works council and make the - already strict - requirements for a works council/staff council hearing somewhat easier. In this respect, the decision clarifies that no objective reasons are required for termination within the proba-tionary period. Furthermore, it should - correctly - suffice on a regular basis if the employees are informed about who holds a (substitute) position with which an authorization to give notice is associated. How-ever, it is recommended to document this notification (e.g. by e-mail; link to the intranet or similar) in writing to avoid any point of attack on the employer's side with regard to possible formal invalidity - the latter also applies to legible writing when signing a letter of termination.