A recent case hot off the press from the Federal Labour Court has found that an employer can reclaim the costs of hiring a private detective from the employee in the event that there are reasonable grounds to believe that the employee is acting in an inappropriate manner. Previously, such costs were only recoverable in the event that the private detective could prove definitively that the person was not acting in an appropriate manner.
This is seen as quite a key development giving German employers greater powers to undertake reasonable surveillance of employees. The facts in this case are not uncommon to those faced by many employers in the UK; the employee was requested by the medical service of a health insurance body to attend health assessments but refused to do so several times.
Eventually the employer declared a termination upon suspicion. Of course, there will be certain caveats and a pre-requisite is that the employer must have acted reasonably in instructing an expert and the costs must not be exorbitant.
However, it is an interesting example as to when and how an employer can place further pressure on an employee who is clearly malingering or acting in a way which is economical with the truth.
On a separate matter there have been some interesting developments in relation to holiday pay in the case of unpaid special leave. This is currently an emerging issue across Europe. In this particular case the employee was employed as a nurse. Between the start of the holiday year which was January 1 and the termination of her employment on 30 September the claimant had some unpaid special leave and didn’t attend work for the employer during that time. On termination of her employment she requested compensation of 15 days holiday to cover this period when she was on unpaid special leave.
The Federal Labour Court held that in accordance with the provisions of the German Federal Holiday Act the only relevant consideration of the calculation of holiday pay is whether an employment contract exists. The question as to whether the employee actually performed any work is irrelevant.
Commentators argue that this will not encourage employers to grant unpaid special leave and it may lead to a tightening of internal procedures.
Whilst not a ground breaking case it does raise interesting issues around the interpretation of holiday pay which is the hot topic on the beaches and the pistes of Europe.
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