Hessisches Landesarbeitsgericht; 2023-11-16; 11 Sa 1130/21
Decision by national courts in the field of European Union law — ECLI:DE:LAGHE:2023:1116.11SA1130.21.00
Date: 2023-11-16
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE1116(51)_ENG_SUMJURE
JURE summary
JURE summary
A flight attendant, who is a German citizen and lives in Germany (hereinafter ‘the plaintiff’), applied for a declaration that his employment relationship with a US airline (hereinafter ‘the defendant’) continued beyond 1st October 2020. He argued that the termination of 29 September 2020 was invalid as it violated mandatory German employment law. He also demanded outstanding salary payments and his reinstatement. Furthermore, he claimed that the defendant had breached the written form requirement of Section 623 of the BGB (1), as the notice of termination was only sent by email without a signature.
The defendant contested the international jurisdiction of the Arbeitsgericht Frankfurt am Main (hereinafter ‘the Court of First Instance’). Pursuant to Article 21(1)(b)(i) of the Brussels I Regulation (recast) (2), the plaintiff’s place of work was not in Germany, but was in the air due to the nature of his work. Furthermore, United States law had been expressly agreed in his employment contract. The defendant further argued that the dismissal was in accordance with United States law, according to which employers are allowed to dismiss employees at any time without giving reasons under the ‘at-will’ principle. It further claimed that a lawful mass layoff notice under German law had been given and that the decision to close the “Inflight Service Base” at Airport C was based on economic reasons.
The Court of First Instance declared that it had international jurisdiction and ruled partially in favour of the plaintiff. It found that the employment relationship did not end on 1st October 2020 due to the termination of 29 September 2020, but on 30 April 2021 instead. The defendant was ordered to issue the plaintiff a qualified performance review letter. The dismissal was formally incorrect as it violated Section 623 of the BGB. In addition, the mandatory provisions of German dismissal protection law applied, as the plaintiff’s employment relationship had a closer connection to Germany than to the USA. The Court of First Instance ruled that a sufficient social selection had not taken place and that the defendant had not sufficiently examined whether continued employment at another location would have been possible. Nevertheless, it refused to reinstate the plaintiff as there was no express right to reinstatement. A claim for outstanding salaries due to the default of acceptance was also denied.
The plaintiff appealed against this ruling to the Hessisches Landesarbeitsgericht (hereinafter ‘the Court of Appeal’). The Court of Appeal largely confirmed the judgment of the Court of First Instance. On the defendant’s appeal, it ruled that the plaintiff was not entitled to a qualified performance review letter because, under US and Illinois law, the defendant as the employer was not obliged to provide the plaintiff with a performance review. The plaintiff’s other claims for reinstatement and unpaid wages were also dismissed. The appellate court further stated that although the termination was not immediately effective due to non-compliance with the written form requirement, the employment relationship was properly terminated upon compliance with the statutory notice period. German dismissal protection law applied despite the agreed choice of law, as it offered the plaintiff more favourable protection mechanisms. In addition, the dismissal was justified due to an operational requirement, as the defendant closed its “Inflight Service Base” at C Airport permanently. A social selection was unnecessary as the layoff applied to all flight attendants.
(1) Bürgerliches Gesetzbuch (German Civil Code).
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.