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When the employee and employer conclude a contract, caution is required - for both parties
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When it comes to an employment contract, the perceived truth is often very different from the actual one.
Here are three labor law rumors - deciphered for non-lawyers.
1. "Nothing in writing in hand? Then there is no employment contract"
Everything to do with the contract between employee and employer is regulated in the German Civil Code (BGB).
As far as the conclusion of a contract is concerned, the BGB makes it relatively easy.
The rule of thumb applies here: it is possible to conclude contracts without any form, of course also with an employment contract.
Conversely, this means: an employment contract can in principle be agreed orally;
if you want to.
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André Niedostadek, Professor of Business Law, Labor Law and Social Law at the Harz University of Applied Sciences
Photo: Harzbeat
Now you will rightly interject: “What about the obligation to provide evidence?”.
For example, Paragraph 2 of the Evidence Act states that the employer must put the essential contractual conditions in writing, sign them and present them to the employee no later than one month after the agreed start of the employment relationship.
The employee still has the option of requesting key points of the contract in writing from the employer within the four-week period.
“However, the obligation to provide evidence is a bit like a toothless tiger - there are no direct consequences if you don't adhere to it,” says André Niedostadek, 50, professor of business law, labor law and social law at the Harz University of Applied Sciences.
Indirectly, however, the employer is doing himself a disservice if he does not write down the employment contract.
If there is a dispute in court, for example, the employee is given a means of providing evidence.
To illustrate this, a decision by the Hamm Regional Labor Court from last year (file number: 17 Sa 46/19) serves here: In this case, a woman was officially employed as a housekeeper by a man.
Her duties included cleaning, washing clothes and cooking.
For these services she should receive 460 euros a month, an hourly wage of ten euros.
But even before the start of the employment relationship, according to the man, it was agreed that he would pay the woman mainly for sex - a classic sugar daddy relationship.
She should also accompany the man when traveling.
She was supposed to visit him twice a week for sexual services.
According to the man, she did not keep this promise - he gave notice to the woman.
E-mail or SMS are not sufficient for termination
The woman, Hartz IV recipient and mother of three children, demanded in addition to the compensation of the vacation days and the good job reference, an additional payment of her wages for the past two months of her employment.
However, the court did not accept this request.
You have not performed the contractually guaranteed activities.
Although there was no written agreement on this, the court was convinced that a corresponding contract would be concluded.
Why?
The exchange of messages between the two parties via WhatsApp suggested the end.
And because the services had not been performed, there was no wage.
She did not perform any sexual services during the period - therefore she is not entitled to the wages.
"Written contracts are customary and recommended to everyone," says Niedostadek.
An exception are fixed-term employment contracts: If the job is limited in time, both parties must record the key data in writing.
And just as important: If an employment relationship can be justified in writing, as learned above, its termination must be in writing: E-mail or SMS are not sufficient here.
2. "No trial period agreed? It doesn't matter! Six months on trial, they always apply"
A probationary period serves to get to know each other, this applies to both the employer and the employee side.
This also fits that a shortened notice period of just two weeks applies during the trial period.
However, it does not apply as a contract, but must be agreed separately.
The trial period does not therefore automatically last six months, but it is possible
to
extend
it to
up to
six months.
Theoretically, you could of course also agree to a longer trial period in the contract.
As described above, the principle of freedom of contract applies.
However, if the probationary period lasts longer than six months, the regular Dismissal Protection Act applies.
After the six months - whether it was agreed as a probationary period or not - the normal rules of statutory protection against dismissal then apply.
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Vocational training is an exception: the trial period must be at least one month, according to the Vocational Training Act.
"Trainees who have started their vocational training have the opportunity to try something different again after the first few weeks without any major problems," says Niedostadek.
And one more piece of good news at the end: Of course, employees are also entitled to vacation during their probationary period;
however proportionally.
They can only enjoy their full statutory vacation after they have successfully met them.
3. "A deal is a deal? Everything that is in the employment contract is binding"
Employment contracts are usually not individually worked out, but often pre-formulated.
This also means that there are clauses in many contracts that do not conform to the general terms and conditions.
They are therefore ineffective.
“The employee does not have to swallow everything that the employer has written into pre-formulated contracts,” says Niedostadek.
Not everything in the contract is effective
Here, too, we are working with an example case for a better understanding: An employee of a freight forwarding company had “bought” an increase in salary from 1400 euros gross to 2400 euros gross plus commissions by negotiating a period of notice of three years with his employer (Federal Labor Court from October 26, 2017: 6 AZR 158/16).
When the employee resigned "properly and on time" some time later, the employer reminded his employee that both of them had set a three-year notice period.
An early termination is therefore not so easy for the employee.
“Not everything that the employer has written into pre-formulated contracts, the employee has to swallow as a toad”
André Niedostadek, Professor of Business Law, Labor Law and Social Law at the Harz University of Applied Sciences
The employee went to court, claiming that a three-year notice period would put him at a disadvantage as an employee.
The clause in his contract is therefore ineffective.
The labor court gave the employee right and the employee was allowed out of his contract within four weeks.
“What is in a contract basically applies first - but of course it's worth arguing about in some cases,” says Niedostadek.
Because sometimes there is more to both sides in a mere employment contract than initially assumed.
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