Mass redundancy notification for staff reductions - relief in sight

Exciting news from Erfurt yesterday: The Sixth Senate of the Federal Labor Court intends to abandon its case law according to which a notice of termination issued in the context of a mass dismissal is invalid if no notice of mass dismissal or only an incorrect notice of mass dismissal pursuant to Section 17 KSchG exists at the time of its declaration (case reference: 6 AZR 157/22 (B)).

This is a decision-relevant deviation from the previous case law of the Second Senate of the Federal Labor Court since its ruling of November 22, 2012 (Ref.: 2 AZR 371/11). The current legal dispute in this matter has now been suspended for the time being. As two senates of the Federal Labor Court disagree on the same legal issue, the matter will now first be clarified within the court (Section 45 (3) sentence 1 ArbGG), possibly with the additional involvement of the Grand Senate.

In practice, this development would have great significance for staff reduction measures. Until now, even minor errors in the (very bureaucratic) mass redundancy notification have given rise to fears that employees who were subsequently dismissed could successfully invoke this error in the unfair dismissal proceedings and have the dismissal declared invalid. This has long been criticized by company representatives and legal advisors in employment law, as the protective purpose of the mass dismissal notification (= support for employment agencies in the forthcoming job placement) is completely different from that of individual dismissal protection law.

It is to be hoped that the Second Senate or, at the latest, the Grand Senate will agree with the new legal opinion of the Sixth Senate.