The tendency protection in individual employment law

• Applicant: Professor Dr. Stephan Gräf
• Subject Area: Private Law
• Term: since 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 543785746

Employment legislation is the result of a balancing of conflicting fundamental rights. These general compromises do not apply if the employer can invoke special fundamental rights (e.g. freedom of the press and broadcasting, freedom of science or freedom of art) in addition to the general freedom of enterprise. While in co-determination law, the protection of such tendency-based companies is comprehensively defined by sub-constitutional law (cf. in particular Section 118 (1) BetrVG), in individual employment law, it can largely only be realized through the influence of the employer's fundamental rights on the interpretation of norms. So far, jurisdiction and academia have only addressed the protection of tendencies in individual employment law selectively; a coherent overall concept is lacking. This study fills this gap by taking into account both "axes": on the one hand, all relevant areas of tendency-neutral individual employment law (the "law to be modified") and, on the other hand, all fundamental rights of employers that protect tendencies (the "modifying law"). This "coordinate system" of tendency protection under individual employment law must be extended by a third axis ("upwards"): Since individual employment law is largely Europeanized today, the legal source pluralism in the European multi-level system is added – both with regard to the law to be modified (EU directives) and with regard to the modifying law (CFR and ECHR). In the first parts of this study, the fundamentals for the tendency protection in individual employment law are elaborated: After a differentiation of the object of investigation from, among others, the right of self-determination of the churches (Part 1) and an analysis of the status quo in sub-constitutional law (Part 2), the potential for modifications induced by fundamental rights is examined from a methodological point of view: For the problems of the horizontal effect of fundamental rights and the relationship between the Basic Law and the CFR, a differentiated solution is developed with recourse to the figures of "fundamental rights-compliant" and "fundamental rights-oriented" interpretation and a "corridor model" (Part 3). Subsequently, the potentially relevant (national and European) fundamental rights are examined and systematized with regard to their tendency-protecting guarantee content (Part 4) and, following on from this, basic structures of tendency protection in individual employment law are developed (Part 5). These principles are then substantiated for the relevant areas of individual employment law (Part 6): In contrast to current jurisdiction, modifications of the concept of employee are to be rejected. All the more important is the protection of tendencies in fixed-term employment law. Here, a new approach (double prediction examination) is proposed to substantiate Section 14 (1) sentence 2 no. 4 TzBfG, which increases legal certainty and – in contrast to current jurisdiction – complies with [..]

• DFG Programme: Publication Grants