Incorrect Mass Dismissal Notification: Now it is up to the ECJ

Background

Since the end of last year, there have been indications of a change in the German Federal Labor Court’s case law (as we previously reported in an article). According to the Court’s Sixth Senate, mistakes in mass dismissal notifications filed with the employment agency should no longer result in the invalidity of the dismissals. The Sixth Senate therefore asked the Second Senate of the Federal Labor Court whether it would continue to adhere to its contrary case law (decision dated December 14, 2023 – 6 AZR 157/22 (B)). Since the German law on mass dismissal notifications is based on the European Directive on Collective Redundancies, the proceedings were stayed by the Second Senate to obtain a preliminary ruling of the European Court of  Justice on the interpretation of the corresponding European regulations(decision of February 1, 2024 – 2 AS 22/23 (A)). Essentially, the question is whether the European Directive on Collective Redundancies is primarily intended to protect the employment market or whether it also grants individual protection to employees. Last week, the Sixth Senate of the Federal Labor Court followed up on this matter by referring further supplementary questions of interpretation to the EJC (decision dated May 23, 2024 – 6 AZR 152/22 (A)). Inter alia, the Sixth Senate requested clarification on the issue of whether the purpose of the mass dismissal notification is also fulfilled under EU law if the employment agency does not object to an incorrect mass dismissal notification but considers itself sufficiently informed.

Practical Consequences

Due to the referral proceedings now pending before the ECJ, employers may have to wait for quite some time until the question whether and how mistakes in mass dismissal notifications may affect the dismissals issued will be ultimately clarified. In the meantime, employers may wish to to take great care when preparing mass dismissal notifications.

Photo: shutterstock / Worawee Meepian