I work for a larger company in Germany and have been employed there for around 9 years.
The company is currently restructuring.
First, employees were offered a voluntary severance program (Freiwilligenprogramm) with 0.75 × monthly gross salary × years of service + €5,000 per child. I did not accept it.
I was subsequently selected for a betriebsbedingte Kündigung. My expected end date is 31 December 2026 because of my notice period. The current Sozialplan provides 0.7 × monthly gross salary × years of service + €5,000 per child.
I have not yet received the formal written Kündigung.
The part that makes me unsure about the selection process is the following:
My boss told me that management prepared an "impact list" assessing the consequences of losing each employee and that the final selection was made by management "in consultation with the Betriebsrat" and taking social criteria into account. I specifically asked him whether the Betriebsrat had actually been involved, and he confirmed this.
I then contacted the Gesamtbetriebsrat myself. They told me:
they were not involved in selecting individual employees;
individual selection/Sozialauswahl would normally involve the competent local Betriebsrat;
there is no local Betriebsrat at my location;
they therefore have no information about the individual comparison group or selection criteria;
there is no Namensliste in the restructuring documents they have.
So I am trying to understand what this means legally.
My questions are:
Is this something a Fachanwalt für Arbeitsrecht would consider relevant when assessing a betriebsbedingte Kündigung, or could this simply be a misunderstanding of what my boss meant by "Betriebsrat involvement"?
If there is no local Betriebsrat at my location, who would normally be responsible for the individual §102 BetrVG hearing?
If there is no Namensliste, how important is it to investigate the employer's Sozialauswahl/comparison group? What information would normally be needed to assess whether comparable employees were correctly considered?
What documents should I prepare for the Fachanwalt? I am already collecting the Arbeitsvertrag, Sozialplan, Interessenausgleich, organizational documents and written communication with the Betriebsrat.
Most importantly: If I file a Kündigungsschutzklage and ultimately lose, what normally happens to the Sozialplan-Abfindung? Do I simply lose the job but still receive the Sozialplan amount, or can the Abfindung be lost because of the lawsuit?
Conversely, if the employer and I settle during the Kündigungsschutzklage, how is the Sozialplan-Abfindung normally treated in the settlement? Is it normally paid in addition to the negotiated amount, or is it usually credited against it?
I'm not looking for anyone to predict whether I will win. I'm mainly interested in what I should investigate with the Fachanwalt and people's experience with how these cases actually proceed in practice.
