HR and Restructuring, Part 3: Can Lisa defend herself against the list of names?

As part of a restructuring at an automotive supplier, the Lisa case examines the legal force of name lists in a reconciliation of interests. The hurdles for wrongful dismissal lawsuits increase significantly due to the reversal of the burden of proof according to Section 1 of the German Protection Against Dismissal Act (KSchG). Employees must prove gross errors.

HR and Restructuring, Part 3: Can Lisa defend herself against the name list?

The economic transformation in the German automotive supply industry has reached a new stage of escalation. The focus is currently on the case of an employee, hereinafter referred to as Lisa, who ended up on a so-called name list against her will in the course of a large-scale restructuring. This list is part of a reconciliation of interests negotiated between the company management and the works council, which is intended to regulate the reduction of numerous positions. Since inclusion on such a list significantly weakens the legal position of employees in a subsequent dismissal protection lawsuit, this case exemplifies the question of individual room for maneuver in struggling industrial sectors.

The legal framework and social selection

The legal construction of a name list according to Section 1 Paragraph 5 of the Dismissal Protection Act serves companies in gaining planning certainty during mass layoffs. If the employer and the works council agree on the persons to be dismissed and name them specifically in the reconciliation of interests, it is legally presumed that the dismissal is due to urgent operational requirements. For those affected like Lisa, this means a reversal of the burden of proof: they would have to prove in court that the social selection was grossly flawed – a hurdle that is very difficult to overcome in legal practice. Social selection takes into account criteria such as length of service, age, maintenance obligations, and severe disability, but the leeway of the operating parties in weighting these factors is considerable.

Strategic importance for specialists and managers

For MBA graduates and aspiring managers in the DACH region, this scenario illustrates the necessity of proactive career planning and profound knowledge of labor law as well as change management. In restructuring processes, it is often not just administrative positions that are cut, but also middle management levels that are replaced by flatter hierarchies. Anyone operating in such an environment must understand that when creating name lists, the operating parties often also want to secure high performers or specialists, while other profiles are subject to disposal. Qualification through an MBA program can have a double effect here: on the one hand, it increases internal relevance through management expertise; on the other hand, it improves external marketability should remaining in the company no longer be legally enforceable.