The previous employer or the new owner has, in accordance with Section 613a para. 5 BGB the employees affected by a transfer before the transfer, etc. to inform about the legal, economic and social consequences of the transition. According to a ruling by the Eighth Senate of January 31, 2008 ( 8 AZR 1116/06 ), this also includes information that the business purchaser only takes over the movable plant parts of the business, but not the business property.
§ 613a Abs. 5 BGB also requires the employee to be informed about the indirect consequences of a business transfer if the employee’s legal position is not directly affected by this, but the economic framework conditions of the business transfer lead to such a serious threat to the new business owner’s economic security that this circumstance is to be seen as an essential criterion for a possible objection to the transfer of the employment relationship.
This is particularly the case if the job security of the business purchaser is affected. The obligation to provide information according to Section 613a Para. 5 BGB represents a legal obligation, the violation of which is acc. § 280 Abs. 1 BGB can give rise to an obligation for damages on the part of the teacher. The employee who claims inadequate information may request to be placed in the position he would have been in if he had been correctly and completely informed. To do this, he must present and prove that he suffered the claimed damage as a result of the inadequate information. The legal consequences over which employees are informed in accordance with Section 613a Para. 5 BGB, the legal consequences that arise directly from the transfer of the business as such are the first to be reported. This requires a reference to the transferee’s entry into the rights and obligations from the existing employment relationship (Section 613a Paragraph 1 Sentence 1 BGB), to the joint and several liability of the transferee and the seller in accordance with Section 613a Paragraph. 2 BGB and also on the termination law situation. The notification of the rights and obligations applicable to the transferee includes reference to the applicability of collective bargaining standards and to which collective agreements and works agreements applicable to the seller will be replaced by collective agreements applicable to the acquirer.
Information regarding the right to object to the Ü ( 8 AZR 1016/06 ) was also found to be improper, with a description of the limited joint and several liability in accordance with Section 613a Para. 2 BGB was missing. The information about the consequences of an objection was also partly incorrect. Only proper information sets the objection period in motion. The right to object can also be exercised after the employment relationship has ended. It takes effect back to the time of the transfer of the business.
It is forfeited if the obligated party could assume that it would no longer be claimed. Merely continuing to work for the business purchaser does not constitute a sufficient circumstance. Although in Section 613a Para. 5 BGB, information about a transfer of a business includes clearly informing the employee to whom the business is to be transferred and who will be his new employer. The employee must therefore be informed about the identity of the business transferee, which requires the name or company (Section 17 Paragraph 1 HGB) of the purchaser and the address to be stated.
According to the decision of the Eighth Senate of August 21, 2008 ( 8 AZR 407/07 ), information does not meet the requirements if it is simply stated that it is intended to set up “a separate GmbH” in order to spin off a part of the company, or the reference is made takes place, the employment relationship is “transferred to the new GmbH with all rights and obligations”. The defendant employer did not disclose who this “new GmbH” was. Even after the GmbH was founded, there was no formal information (Section 613a Para. 5 BGB) about its identity. The fact that an employee receives his remuneration from the purchaser and performs his work for her does not replace proper information about her identity.