The Federal Labour Court (Bundesarbeitsgericht, BAG) had to decide in which case a social compensation plan endowment by the conciliation committee is economically unjustifiable for a company outside of insolvency. This shall be the case if the fulfilment of the social compensation plan obligation would lead to illiquidity, balance sheet over-indebtedness or an unacceptable reduction of the company's equity. If the endowment was economically unjustifiable, the discretion of the conciliation committee was exceeded and the social compensation plan therefore invalid.

Was bringt 2021 aus arbeitsrechtlicher Sicht? Wir fassen die arbeitsrechtlichen Neuerungen in 2021 für Sie zusammen:

Erhöhung des Mindestlohns

Der Mindestlohn beträgt ab dem 1. Januar 2021 9,50 Euro brutto je Stunde. Ab dem 1. Juli 2021 steigt er weiter auf 9,60 Euro, ab dem 1. Januar 2022 beträgt er 9,82 Euro und ab dem 1. Juli 2022 10,45 Euro; jeweils brutto je Stunde. Die Minijob-Grenze bleibt jedoch bei 450 Euro im Monatbestehen.

Verlängerung des Corona-Bonus

The United Kingdom has voted to leave the EU. Before the referendum, we considered in detail the potential impact of Brexit in the context of restructuring and insolvency. In particular we highlighted that Brexit could have an impact on cross-border restructuring/insolvency given the UK is currently viewed as a popular jurisdiction for implementing complex cross-border restructurings and insolvencies in light the regimes being widely regarded as well established, flexible and creditor friendly.

The Employment Appeal Tribunal (“EAT”), in the case of Secretary of State for Business, Innovation and Skills v McDonagh, has had to consider what the “appropriate date” is for the purposes of employees claiming arrears of salary and holiday pay from the National Insurance Fund, in circumstances where a voluntary insolvency procedure is followed by a compulsory insolvency procedure.

The Court of Appeal has issued further guidance on the thorny issue of the application of the TUPE Regulations to administration proceedings.  While many practitioners will feel that the decisions are not helpful in trying to achieve business sales in what is already a challenging market, insolvency practitioners (IPs) nonetheless need to be aware of the clarity that these cases have brought. The key points to note are:

The EAT has confirmed that it is not necessary for the eventual transferee to have been identified in order for an employee, dismissed in the run up to a transfer, to claim automatic unfair dismissal by reason of a relevant transfer under TUPE (Spaceright Europe Ltd v Baillavoine & another).

OTG v Barke is the latest case from the Employment Appeal Tribunal (EAT) to consider how the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) apply in the context of the sale of a business in administration. The case largely resolves the uncertainty in that context and affirms the general practice of administrators and purchasers of businesses from them.

Administrators will note with concern the decision of the East London Employment Tribunal in Spencer v Lehman Brothers (in administration) and Others, which suggests that administrators can be held to be personally liable for the discrimination of employees of the business in administration.

Last year, in the case of Oakland v Wellswood (Yorkshire) Ltd, the EAT suggested that, if an administrator has been appointed with a view to liquidating a transferor company, this fell within the exception provided by TUPE Regulation 8(7) (which provides that where there are insolvency proceedings instituted with a view to liquidation, the key employee protections afforded under TUPE do not apply). This ran contrary to government guidance.

The Court of Appeal has heard the appeal in Oakland v Wellswood (Yorkshire) Ltd. Although its written judgment has not yet been published, it appears that it heard an appeal only on a narrow point of employment law and did not give definitive guidance on the application of the insolvency provisions in the TUPE Regulations which had been the principal issue in the EAT.