Part 2: Aspects of the German and Portuguese law on special protection against dismissal which are probably less well known
This article seeks to introduce the differences (and similarities) in the German and Portuguese legal systems regarding special protection against dismissal.
In this second step, we will identify groups of employees who also enjoy special protection against dismissal, but who are probably rather unknown.
1. Germany
There is probably less awareness of the following facts, although they are relevant in practice:
- In accordance with Sec. 22 para. 2 sentence 1 of the Vocational Training Act (BBiG), trainees can only be dismissed by the employer for good cause after the end of the probationary period. According to case law, this is only possible if the training objective is significantly compromised and the continuation of the training relationship is unreasonable, e.g. due to issues relating to trust, such as theft or fraud.
- If women or men undertake to perform voluntary military service, they receive the same status as former – or, in the event of a state of tension or defense, current -conscripts, Sec. 58 f of the Soldiers Act (SG). This means that the employer may not terminate the employment relationship from the date of notification of the call-up until the end of the military service. However, while this also applies by analogy to those performing civilian service, it does not apply to participants in the Federal Voluntary Service.
Some other facts which are probably less well known are, for example, the special protection against dismissal for special company representatives:
- The data protection officer appointed based on a legal obligation enjoys special protection against dismissal in accordance with Sec. 6 para. 4 sentence 2, Sec. 38 para. 2 of the Federal Data Protection Act (BDSG). The employer may only terminate the employment relationship without notice if there is good cause. Pursuant to Sec. 6 para. 4 sentence 3 BDSG, this special protection against dismissal continues to apply for one year after the end of activity as a data protection officer. Sec. 626 BGB (i.e. for good cause) also applies by analogy to any such removal from office as data protection officer. As confirmed by the Federal Labour Court (BAG) following a preliminary ruling by the Court of Justice of the European Union (ECJ), this very far-reaching protection of the company data protection officer against discrimination and dismissal is not in conflict with the law, and, like all special protection against dismissal, also applies during the probationary period and the waiting period pursuant to Sec. 1 para. 1 KSchG (i.e. starting right from the beginning of the employment). The BAG emphasized that the special protection against dismissal is not disproportionate, because a (non-public) employer has the free choice as to whether he wishes to appoint an internal data protection officer, who is therefore subject to special protection against dismissal, or an external data protection officer.
- The Anti-Money Laundering Officer appointed based on a legal obligation pursuant to Sec. 7 para. 1 of the German Money Laundering Act (GWG) or by order of the supervisory authority pursuant to Sec. 7 para. 3 GWG also enjoys special protection against dismissal. According to Sec. 7 para. 7 sentence 2 GWG, the termination of the employment relationship (during the term of office) is not permitted unless there are facts that entitle the employer to terminate for good cause without observing a notice period. The anti-money laundering officer and his representative are protected against dismissal and may not suffer any disadvantage in the employment relationship due to the fulfilment of their duties in accordance with Sec. 7 para. 7 sentence 1 GWG. However, please note that important grounds for dismissal may include the failure to report suspicions of money laundering, terrorist financing or any other significant abuse of position as anti-money laundering officer in this context. The special protection against dismissal continues to apply for one year after removal from office as an anti-money laundering officer or representative.
- In some cases, employees who hold a political mandate or work in certain honorary positions are also subject to special protection against dismissal:
- For example, Sec. 2 para. 3 AbgG prohibits ordinary termination of the employment of members of and candidates for the Federal Parliament (Bundestag). The special protection against dismissal begins with the nomination of the candidate by the responsible body of the party or with submission of the election proposal and continues for one year after the end of the mandate. Termination for good cause remains permissible. The law prohibits the termination of the employment relationship due to assumption or exercise of the office as a Member of the Federal Parliament. The same applies to members of the European Parliament (Sec. 3 para. 3 EuAbgG). In some cases, state law also provides for special protection against dismissal for members of the state and district parliaments as well as at municipal level.
There are also special prohibitions on anti-discrimination for most of the above-mentioned groups of employees who enjoy special protection against dismissal due to the exercise of an (honorary) office. The same applies to honorary judges pursuant to Sec. 45 para. 1a sentence 3 of the German Judges Act (DRiG).
2. Portugal
After the analysis of the German regime, we can point out the following about the Portuguese Labor Framework:
- Not being a contract of employment proprio sensu, the contract of extra-curricular professional training may cease when one of the parties informs the other, by registered letter and in advance not less than 15 days, about the intention not to maintain the internship contract in accordance with art. 12, paragraph 5 of Decree-Law 66/2011, of 1 June.
- The provision of voluntary military service does not generate any increased protection against dismissal. Also, it may be admitted that, given the voluntariness of that provision, the employment contract is not suspended, pursuant to art. 296 of the Portuguese Labor Code. However, citizens who provide or have provided military service have access to a series of incentives, including support for insertion in the labor market, according to Decree-Law 76/2018, of 11 October.
- The Portuguese legal system does not provide special protection against dismissal for data protection officer (DPO). However, as indicated in art. 38, paragraph 3 of the GDPR, DPO cannot be removed or penalized for performing his duties, which indicates that there is a limitation of the disciplinary power of the controller (or processor) as an employer.
- In the same way as the DPO, the Anti-Money Laundering Officer performs his functions independently and with the necessary decision-making autonomy, in accordance with art. Law 83/2017, of 18 August. In this sense, he/she may not be removed or penalized for performing his duties.
- In the Portuguese legal system, employees with political positions or employees who hold an honorary position do not have increased protection against dismissal compared to other employees.
Germany: Special protection against dismissal may also arise from the employment contract.
Finally, the right to terminate the employment relationship may also be restricted by contractual agreement. For example, the exclusion of an ordinary termination by the employer in an employment contract is effective if the employer retains the right to extraordinary termination. However, an agreement in the employment contract according to which the termination is dependent on the approval of the works council is invalid. Contractual restrictions can be found, e.g., in the case of compliance officers, who do not enjoy any special statutory protection against dismissal. In practice however, special contractual protection against dismissal is often agreed because otherwise no sufficiently qualified person can be recruited for this special task.
Portugal: Special protection against dismissal cannot arise from the employment contract.
The Portuguese law, unlike the German law, has established that the legal regime on termination of the employment contract is compelling. Therefore, its rules cannot be amended by the parties i.e. by contract or collective bargaining agreement.
Therefore, the employment contract can neither exclude any form of termination nor safeguard the employee from being covered by a redundancy.
However, the deadlines for legal notices and, within legal limits, the amount of compensation in case of a termination of the contract may be regulated by collective bargaining agreement.
Conclusion
Based on the above, it should always be carefully checked whether employees are subject to special protection against dismissal. Employers, not only in Germany but also in Portugal, are well advised to check carefully in each individual case whether there are any restrictions on dismissals or other restrictions, e.g. due to voluntary or political activities. In this context, provided that in accordance with applicable law, it is advisable to enquire about possible activities in the beginning or during the ongoing employment relationship. However, there is no legal obligation of the employee to answer this question truthfully.
Also, as pointed out, there are many differences between the German and the Portuguese regime regarding the categories of employees who may be governed by special protection against dismissal. As a matter of fact, the German legal system provides for a greater number of categories of employees who, due to their status or due to different circumstances, enjoy higher protection against dismissal, whereas the Portuguese law does not provide for this protection in many cases. For this reason, it is highly recommended to thoroughly examine existing special protection against dismissal before issuing a corresponding dismissal. Of course, we will be happy to support you in this regard.
This article was originally written in English, by João Villaça from DCM | Littler and Kim Kleiner from Vangard | Littler, during her collaboration with DCM | Littler office, in Portugal.
