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Unequal treatment of employee groups upon the privatisation of clinics in the City of Hamburg unconstitutional
Press Release No. 36/2010 of 02 June 2010
Order of 14 April 2010
1 BvL 8/08
In 1995 the Betrieb Landeskrankenhäuser Hamburg (LBK Hamburg), a public law institution with legal capacity, was established under the responsibility of the Free and Hanseatic City of Hamburg. The employment relationships of the employees who until then had worked in the city-owned hospitals were transferred to LBK Hamburg. In the event of privatisation all employees in the city clinics were granted the right to return to civil service.
As of 1 January 2000, LBK Hamburg assigned its wholly-owned subsidiary C. GmbH to provide the cleaning services in the hospitals. The employment relationships of the workers in the cleaning services were transferred to C. GmbH by way of a partial transfer of business in accordance with § 613a of the German Civil Code (Bürgerliches Gesetzbuch - BGB).
At the beginning of 2005 the Betriebsanstalt LBK Hamburg was established and converted into a limited liability company, LBK Hamburg GmbH. Based upon legislation, this company became the employer of a significant portion of the employees already transferred in 1995 from the City to LBK Hamburg, however, this did not include those workers in the cleaning services still employed by C. GmbH. Initially the City remained the majority shareholder of LBK Hamburg GmbH.
In § 17 sentence 1 of the Law on the Hamburg Pension Fund - Public Law Institution (Gesetz über den Hamburgischen Versorgungsfonds - Anstalt öffentlichen Rechts - HVFG) from 21 November 2006, the right to return to civil service granted to employees in the event of a sale of the majority was now limited to employees of LBK Hamburg GmbH. On 1 January 2007, the majority of the shares in LBK Hamburg GmbH were transferred from the City to a private entity.
The plaintiff in the original proceedings was employed in 1987 as a cleaner at the Allgemeines Krankenhaus Altona. In 1995 her employment relationship was transferred from the City to LBK Hamburg and from 2000 onward she was an employee of C. GmbH. She sued the City for a declaration that she had the right to return to civil service. The Higher Labour Court (Landesarbeitsgericht) submitted the question of whether § 17 HVFG is compatible with the Basic Law (Grundgesetz - GG) to the Federal Constitutional Court through the procedure of a concrete review of a statute (konkrete Normenkontrolle).
The First Senate of the Federal Constitutional Court decided that § 17 sentence 1 HVFG is incompatible with both the general principle of equality in Article 3.1 GG as well as with Article 3.2 GG. The state legislature has until 31 December 2010 to enact a new law.
In essence, the decision is based on the following considerations:
§ 17 sentence 1 HVFG leads to unequal treatment within the group of employees whose employment relationships were transferred from the City to LBK Hamburg in 1995. Originally the cleaning staff were granted the right to return to civil service in the event of privatisation, as were the other employees of the city clinics upon the establishment of LBK Hamburg. However, this right was repudiated by § 17 sentence 1 HVFG because it was limited to the employees of LBK Hamburg GmbH.
This unequal treatment is not justified and, thus, is incompatible with Article 3.1 GG. That the cleaning staff were employed by a company organised under private law prior to the privatisation that triggered the right to return pursuant to § 17 sentence 1 HVFG is not a justifiable reason for discriminating against the cleaning staff. Nothing different applies to the employees who fulfil the legislative prerequisites for the right to return to the City. From the beginning of 2005 onward their employer likewise was a limited liability company.
The City's arguments that the cleaning staff could have maintained their civil service status at the time of their transfer on 1 January 2000, by stating their objection to the change of employer pursuant to § 613a.6 BGB, does not present any relevant legal difference to the other employees. The cleaning staff cannot be presumed to have consciously decided in 2000 to not remain in the civil service. Rather, they merely tolerated without objection the partial transfer of business from LBK Hamburg to C. GmbH, which then was still controlled by the City. In this way they complied with the City's restructuring measures in the hospital area and, thus, even demonstrated their solidarity with the City's personnel planning. Moreover, at the point in time that LBK Hamburg was no longer their employer, the legal situation was identical for both employee groups. The other employees also could have maintained their employment relationship with the City by stating their objection upon the conversion of LBK Hamburg to a limited liability company, because the state legislature had provided for the corresponding applicability of § 613a.6 BGB. There also is no relevant legal difference in the fact that in January 2000 the cleaning staff would have had significant cause for objection to the change of employer while, however, the other employees did not at the turn of the year 2004/2005. This is because subsequent to the partial transfer of business the cleaning staff only had an actual, permanent employment opportunity with C. GmbH. Thus, one cannot say that the cleaning staff would have had an alternative that would not have caused them an appreciable legal or economic risk.
The discrimination against the cleaning staff also cannot persuasively be supported by the fact that building cleaning is not a service that can be directly allocated to health care. The City privatised all areas of the hospitals and did not see a necessity for leaving individual areas in the public sector. Thus, it is not persuasive that only certain employee groups are permitted to demand continued employment in the civil service.
Furthermore, the rule in § 17 sentence 1 HVFG is incompatible with Article 3.2 GG because it leads to gender discrimination. By limiting the right to return, the state legislature disadvantaged female employees disproportionately and without justifiable legal grounds. The gender-specific effect of the special rule for cleaning staff comes from the fact that it primarily impacts women, in the amount of 93.5 %. This percentage is significantly higher than the percentage of women in the clinic area, which is already high.