Service provider clause in the social selection

With an operational termination Employers cannot simply terminate their jobs according to the "watering can" principle, freely following the motto: The main thing is ten jobs less, no matter who leaves. This is by no means irrelevant, as the employer has to make a correct social selection.

Principles of social choice

• As part of the social selection process, your employer must focus on the individual employees' worth of protection. A long-term employee with three children who is also severely disabled can therefore usually find it much more difficult quit as a younger employee who has only recently worked in the company, has no maintenance obligations and does not is severely disabled.
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• If a social selection were to be carried out without any exception, this can, however, mean that the employer In particular, he would have to terminate the colleagues he would like to keep because they are particularly valuable for the company are. These so-called "service providers" therefore have the privilege of not being included in the social selection process from the outset. This is expressly regulated in the Employment Protection Act (KSchG).

High performers are left out

• According to § 1 Abs. 3 sentence 2 KSchG, those employees whose further employment is in the legitimate interest of the company are not to be taken into account in the social selection. This can be the case in particular because of their knowledge or because of their skills and achievements. Also ensuring a balanced staff - especially with regard to the age structure Structure can be a reason to select certain workers from the outset except.
• The heavier the social interest of the other employees, the more important the reasons must be that speak for the removal of the "top performers" from the social selection. Because this is about balancing social and operational interests. If, for example, a large number of severely disabled people were affected by a dismissal, it must be very good on the other hand Give reasons for not taking into account employees who are not severely disabled from the outset in the social selection process.


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What the employer has to explain

• If your employer wants to invoke the so-called service provider clause, he must of course also explain the legitimate operational interest. This is particularly true with regard to maintaining a balanced age structure.
• On the one hand, it should only be a question of maintaining the previous age structure from the outset. An "improvement" or "rejuvenation" as a goal is not permitted.
• On the other hand, your employer must be able to explain very precisely what specific disadvantages threaten if the previous age structure is not retained. Because this does not necessarily have to be a disadvantage; Among other things, not when it is not about heavy physical work that may be easier to do by younger employees, but about intellectual activities.

It is easier for the service providers of a company to be spared an operational dismissal. At least if there is a legitimate business interest in doing so.