In the case of dismissals for operational reasons, a company must be as socially fair as possible. This so-called social selection is a prerequisite for being allowed to issue notices at all, explains nathalie oberthur, a member of the executive committee of the labor law working group of the german lawyers' association. "So when jobs are eliminated, it is necessary to look within a circle of comparable employees: which employees are most vulnerable socially??"
Time and again, large companies make headlines with mass dismissals. Most recently, neckermann and lufthansa announced layoffs of 1380 and 3500 positions respectively. Employees whose jobs are to be cut are compared with each other in four categories: age, number of years with the company, maintenance obligations to children, spouses or parents and severe disability. "After that, it is decided who actually gets hit", says oberthur.
Special case of severe disability
Severe disability is a special case. In order to be allowed to hire a severely disabled employee at all, the integration office must give its approval. Otherwise, severely disabled employees would be excluded from the social selection process from the outset, explains the lawyer.
The four criteria were also weighted differently. However, there is no general guideline for this. "When you have someone who is two years old, but the other is employed two years longer, then it is difficult, then you have to make an overall assessment", says oberthur. "The employer has a certain amount of leeway here."
If you are fired, even though you consider yourself to be in need of protection, you can file an action for protection against dismissal. However, the so-called burden of proof lies with the employee. According to oberthur, he must show which comparable employees exist and what social data they have. But because he usually can't do that easily, he says, the employer is obliged to give him information on this point.