Introduction of short-time work by instant notice of dismissal pending a change of contract ?

Especially in the Corona pandemic, many employers have discovered short-time work as an effective means of bridging this difficult phase. Nevertheless, short-time work cannot simply be imposed by the employer.

Rather, a legal basis is required. This can result from a collective agreement, a works agreement or the employment contract. In case none of these apply, the employer must reach an agreement with each individual employee on the introduction of short-time work.

However, if the employee refuses to conclude a corresponding agreement, the employer faces difficulties.

Can short-time work be introduced by means of an instant dismissal with the option of altered conditions of employment?

In the underlying judgment of the Stuttgart Labour Court, the employee had refused to sign a corresponding agreement on the introduction of short-time work.

The employer therefore gave an instant notice of dismissal pending a change of contract or alternatively ordinary dismissal with notice. This in turn was intended to entitle the employer to introduce short-time work for a limited period of time in the event of a considerable lack of work and further legal conditions. The beginning and end of the short-time work, as well as the reduction of the weekly working hours, were to take place with a notice period of three weeks in advance.

The employee filed a so-called action for protection against unfair dismissal.

However, the Labour Court affirmed the effectiveness of the instant dismissal for operational reasons. The urgent operational requirement resulted from the considerable loss of work in the employer’s business.

The court also assumed that the dismissal was proportionate. Particularly since the short-time work had been limited in time, had included a notice period for imposing the short-time work and an attempt had been made in advance to reach a consensual agreement.

As the statements of this decision show, the case law provides the employer with a tool to react to such a crisis at short notice. Provided that the employer uses it correctly.