Notice of mass layoffs: does "should" mean "must"?

In the event of an operational restructuring, a significant number of employees may be laid off. Section 17 of the Dismissal Protection Act (Kündigungsschutzgesetz - KSchG) – which is based on the EC Directive on Mass Dismissals – stipulates that the employer is obliged to notify the Employment Agency of the intended layoff before giving notice of termination.

A number of details "must" or "should" be given. An incorrect mass layoff notification, which in particular does not contain mandatory information, can lead to the invalidity of the terminations that are the subject of the notification.


The instructions "must" and "should" prescribed in this context have so far seemed to be clearly defined in practice. "Should" does not mean "must", merely "can". A decision by the Hesse State Labour Court is now attracting attention because it questions this common definition by interpreting "should" as "must".


Read the full article (in German) by kallan partner Dr. Christian Bloth and lawyer Jonas Anders in the current online edition of Deutscher AnwaltSpiegel:


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