Waiver of the right of objection at the transfer of a business

If an entire business is transferred to a new legal entity, e.g. by way of an asset deal, the employment relationships with the employees employed there are also transferred to the new legal entity under German law (so-called transfer of business, section 613a of the German Civil Code (BGB)). The employees must be informed of this. Since they have a right to object against the transfer of the employment relationship to the purchaser, the option to contractually transfer the employment relationship is often given in the information letter in order to create legal certainty. Thus the employees are to waive their right of objection at the same time. When interpreting a declaration as a waiver of the employee's right to object in accordance with section 613a (6) BGB as such or as a merely temporary waiver of the right to object, the high importance of the right of objection of the employee must be taken into account. A waiver must therefore be expressed clearly and unmistakably, according to the Federal Labor Court (BAG) in its judgment of February 28, 2019 (8 AZR 201/18). In the underlying facts, the plaintiff had signed a "declaration of consent", which had the following contents: "After I was informed on August 5, 2015 of the transfer of the business, I hereby declare my consent to the transfer of my employment relationship to the company C GmbH, in B, on unchanged terms from September 1, 2015".

The BAG decided that the plaintiff had not waived her right of objection as such by the declaration of consent from September 2015. Rather, the plaintiff had waived her right to object at best temporarily, i.e. at the most for the period until shortly before expiry of the period of one month after receipt of the notification as stated in the notification letter. This was the result of the interpretation of the declaration of consent. Both a permanent and a temporary waiver were possible in principle. The precondition, however, was that the employee was aware that he or she had such a right. Whether a waiver of the right to object or its exercise also presupposes a proper notification could remain open in the present case, since in any event this was only a temporary waiver. When interpreting the "declaration of consent" in the form contract, it should be noted that a waiver of rights in general cannot be presumed, so that their abandonment can only be assumed under strict conditions. Although a waiver does not have to be expressly declared, it must nevertheless be expressed clearly, unequivocally and unmistakably elsewhere. The plaintiff could therefore only understand the letter as meaning that the declaration of consent was at most associated with a temporary waiver of the exercise of the right of objection for a maximum period until shortly before expiry of the monthly period as stated in the letter of notification.

What is pleasing about this decision is that it remains possible for the employee to waive his right to object. However, high demands are placed on this. A pre-formulated declaration of consent should therefore expressly speak of "waiver". Legal uncertainty remains, however, to the extent that the BAG leaves open whether an error-free notification is a prerequisite for an effective waiver. It has not yet been decided whether a correspondingly comprehensive clarification of the employee is sufficient for this.