The rights and obligations of the employee and the employer under the existing employment contract are continued directly by the operation of law concerning the new employer. If the employee is asked to sign a new employment contract, they may refuse to do so without any consequences.
Who is Protected by § 613a (1) sentence 1 BGB?
First of all, only persons who are in an employment relationship with the previous employer are covered. Fixed-term or suspended employment relationships (e.g. persons on parental leave), part-time employees, trainees or persons in managerial positions are excluded.
Sometimes, however, the distinction can be problematic, primarily if the activity performed by a person cannot be explicitly assigned to the part of the enterprise being transferred. In such cases, the employee must be involved in deciding on the location.
The Prohibition of Dismissal under § 613a (4) BGB
The transfer of the undertaking itself does not justify dismissal by the new employer. However, other terminations for operational, personal or behavioural reasons are possible, as in any employment relationship. However, extreme care is required, especially concerning terminations for operational reasons. The validity of the dismissal must be clearly demarcated as being objectively business-related and in no way business-transfer-related.
Collective Agreements and Works agreements § 613a (1) p. 2 – 4 BGB
Collective agreements and work agreements are often an essential part of employment relationships. Accordingly, they must also be considered concerning a transfer of an undertaking. A distinction must first be made to make a concrete assessment:
- What is the nature of the previous inclusion of the collective agreement?
- Static (reference point remains the version that applied at the time of the conclusion of the agreement) and small dynamic (reference point is the said collective agreement in the current version) references in the employment contract to a collective agreement also apply directly to the new employer. However, if the reference is a significant dynamic reference, the collective agreements in force in the enterprise in their current version are the reference point. The “establishment” is then also understood to mean the establishment of the acquirer, even if other or even less favourable collective agreements apply here. Note: This only applies to employees who are members of a trade union/employee association. If this is not the case, they are referred to as “outsiders”. The employment contract provisions then do not apply under the collective agreement but directly from the employment relationship and, therefore, according to § 613a (1) BGB.
- If the same collective agreement binds the transferor, transferee, and employee, it continues to apply after the transfer.
- Suppose the new employer is subject to a separate collective agreement from the former employer. In that case, the acquirer’s collective agreement only applies if the employee is a member of the trade union/employee association concluding the agreement.
§ 613a (1) sentence 2 BGB contains the “transformation provision”. Suppose the acquirer does not have a collective agreement that has been declared generally binding or has not been concluded by the employee’s trade union. In that case, the provisions based on a mutual collective agreement between the former employer and the employee are transformed into the existing employment contract. These contents may not be changed to the employee’s disadvantage for one year.
Works Agreements and their Continued Existence
Work agreements are transferred to the employment relationship if no corresponding contracts with the new employer exist. Here, too, the one-year ban on changes regarding disa