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Created on Thursday, 08 April 2010 14:54

Last Updated on Friday, 28 December 2012 18:58

Terminating Employment Because your German is Insufficient?

Günther fired his employee extraordinarily because his employee lacked sufficient knowledge of German. Can that be? Outrageous, isn't it? The Federal Labor answered this question for us with its judgment ofJanuary 28, 2010 (re 2 AZR 764/08).

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The employee is a Spaniard, Josè, working in Germany as a production assistant since the late 70's. He signed a job description where he promised to have sufficient German command in word and speech. Since he lacked it at the time of employment, Günther sponsored him a language course. Several internal audits later determined that his German was still not sufficient. José visited more German courses. After some more time, he still was not able to read and understand the instructions for employment and testing. Günther, again told him to visit more German classes. The Spaniard however refused. With approval of the works council, Günther extraordinarily gave notice to the employment contract.

As the Federal Labor Judges held, Günther acted absolutely correctly. This notice is socially justified in terms of §1 KSchG. A German company can not be refused to expect and demand of its employees that they speak German (in Germany). Whenever an employee deliberately and persistently refuses to learn more German, then it is justified to determine that the employee's ability to professionally meet the needed tasks is insufficient. This is not discrimination of the foreigner whatsoever, pursuant to §3 II AGG - disadvantages based on ethnic grounds. Another, and legal argument, is that §9 AufenthG requires basic German abilities to be entitled to a settlement permit - permanent residency. This provision has not been found to be illegal.

Hints for Practice:

BAG's decision is a far reaching one. After the General Equal Treatment Act came into force, it was discussed whether the reliable command of German may be demanded or not. The Federal Labor Court now clarified this uncertainty that even a long-term employee (it was 29 years in the reported case) can be given noticed due to the lack of sufficient knowledge of German. The employer has no obligation to present work instructions in English or any other language, such as the native tongue of the employee. However, when a person has been employed for a longer period, the employer must give him a chance to brush up his German. Only when this has been done without success or the employee refuses to partake German lessons, will termination be justified.

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