If a job has been eliminated and there is no way the employee can be reassigned another job, the employer must under German law carry out a "social selection" in order to determine who can be released (Sozialauswahl). This “social selection” serves the purpose of identifying the employees to be dismissed by comparing the social data of each employee, such as age, dependant children, years of service with the company etc. Each criteria gives a certain number of points, so that in the end, the employer can make up a list comparing the employees of which those with the lowest number of points are the first ones to be dismissed. Until the recent decision, a mistake in determining the relevant social points lead to an incorrect “social selection” allowing all of the employees having been made redundant to challenge their dismissal in court. This means, that the mistake alone leads to invalid dismissals, regardless of whether or not the suing employee could also have been dismissed in case of an entirely correct social selection. The Federal Labour Court has now decided that in the future a mistake with regard to the “social selection” will not lead to the consequence of all dismissals being invalid but that a dismissal will only be invalid if the suing employee can show that he could not have been dismissed in case of a proper “social selection”.

The decision can be considered as a landmark decision in German employment law since it takes a high risk away from the employers. Due to the fact, that a “social selection” is a very complex matter, it happened relatively often that dismissed employees successfully sued their employers. This risk is now insofar banned as the plaintiff does now need to argue that he would not have been on the list in case of a proper “social selection”