Il recente dibattito sui licenziamenti nel diritto tedesco (Parte I)

Protection against unfair dismissal has been one of the most controversial issues of the recent legal debate in Germany, as well in Italy. According to several studies, German statutory dismissal protection is still characterised by a very high overall strictness, even if in the last two decades some labour market reforms have partially “deregulated” and “flexibilized” it in order to promote job creation. Using a comparative approach, the essay seeks to explore the evolution of the system of dismissal protection in Germany. After having described Federal constitutional Court’s principal findings concerning this subject, it considers the different kinds of reasons possibly justifying an ordinary or extraordinary dismissal and takes also into account some of the more significant concerns that case law raises, such as the selection of the employees to be dismissed in a case of dismissal for economic reasons, the transfer of the employee to a job with comparable or lower working conditions and the important role that the works councils play in dismissal procedures. The article shows further that some of the assumptions about the inability of the reinstatement to act as a deterrent and the possibility of judicial dissolution of the employment relationship upon the employer’s application are overstated even if the labour courts tend to be still too much reluctant in recognizing the right of the dismissed employee to be reinstated during the lawsuit. The final paragraph focuses on the discussion of some of the most relevant reform proposals to limit protection against dismissal in favour of compensation arrangement. In light of these concerns the paper questions whether Italian lawmaker has adopted the right approach in dealing with the question of reinstatement. INGLESE