Duty to work (labor law)

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Duty to work in the employment relationship is the main duty of the employee to work for the employer in accordance with the employment contract. As a principal obligation of the employer is the obligation to pay remuneration in the form of a salary in mutual relationship against.

General

The obligation to work results from the employment contract . As a rule, however, no precise content of the respective duty to work is agreed in employment contracts , but more or less general descriptions such as the job title . The right of directors to which the employer is entitled from Section 106 GewO , which can substantiate the work obligation , for example through a job description , becomes more specific . This right of direction includes the employer's right to give instructions to all employees to determine the content of the work , the place of work and the working hours of the work at its own discretion . In exercising his right to issue instructions, the employer may, in principle, determine which type of work the employee has to perform. It enables the employer to assign certain tasks to the employee or to withdraw them. The employer must always exercise reasonable discretion when giving instructions. According to the wording of § 106 GewO, it is a unilateral right to determine performance according to § 315 BGB , whereby the quantitative scope of the mutual main performance obligations (work and remuneration obligations) is not subject to the right to issue instructions. Therefore, the employer is not authorized to assign the employee to a job with lower remuneration, even if the previous remuneration is continued to be paid. Neither manual workers nor salaried employees may be assigned a job that belongs to a lower salary group. Target agreements in the employment contract are not part of the employee's duty to work; he only owes sufficient action to contribute to the fulfillment of the target agreements.

Legal issues

In December 2003, the Federal Labor Court (BAG) summarized its opinion on the duty to work as follows: "If the work performance in the contract, as is usually the case, is not described in terms of quantity and quality, or is not described in more detail, the content of the service promise is based on the one hand The work content to be determined by the employer by exercising the right of direction and on the other hand according to the personal, subjective performance of the employee. The employee must do what he should, and as well as he can. The obligation to perform is not rigid, but dynamic and oriented The performance of the employee. An objective yardstick is not to be applied ... The duty-bound person owes the "work", not the "work" ".

Substantive law

Debtors and creditors of the duty to perform

Debtor of the work, § 613 sentence 1 BGB

After § 613 clause 1 BGB applies: "The for service obligated the services in case of doubt in person to afford." § 613 clause 1 BGB applies not only to service contractual relationships , but according to the prevailing opinion for employment .

If the employee - as is usually the case - has to perform his work “in person”, he may not commission a third party to perform his work and does not have to do so even if he can not perform the work himself - for example due to incapacity for work . This expresses the personal character of the employment relationship. Section 613 sentence 1 BGB also applies to service contracts.

The duty to work does not apply if the employee is unable to work (e.g. illness ). Statutory employment bans can intervene in favor of the employee (e.g. maternity leave ). The employee can have a right to refuse performance . In labor disputes , the employee can be suspended from the duty to perform work.

The employee can be entitled to exemption from his / her duty to work (e.g. vacation ). Under certain circumstances, the employer may have the right to release the employee from the obligation to perform work against his will (see release ).

During the employment relationship, the employee generally has a right to employment (employment entitlement ). In the event of a dispute about the effective termination of the employment relationship (e.g. notice , time limit ), the employee can have a general right to continued employment .

If the employee does not work, he generally receives no wages (“no work, no wages”). This principle has been broken many times for reasons of employee protection (e.g. § § 615 , § 616 BGB, § 3 EFZG , § 1 BUrlG ).

The employee does not owe the employer his entire life, only his working hours . Secondary jobs are i. d. Usually permissible if they are not in conflict with the work owed (see non- competition clause ).

If the employee is obliged to perform work and if the employee does not perform his owed work, one speaks of a refusal to work , which can be a reason for dismissal as a persistent refusal to work . If the employee no longer works at all for the employer despite an existing employment relationship and despite an existing duty to work, he commits a so-called breach of contract . Due to the factual impossibility of preventing this on the one hand (see enforceability below) and on the other hand the difficulty of proving damage that has occurred, there are often provisions in form contracts that provide for a contractual penalty in the event of a breach of contract . Although this is not a priori, the terms and conditions are often legally ineffective.

If an employee, in breach of contract, employs a third party for the purpose of fulfilling his duty to work, he is liable for this as a vicarious agent according to § 278 BGB . The behavior of the employee can mean the subject of a warning and (in the case of repetition) a behavior-related reason for termination.

Contrary to popular opinion, § 613 sentence 1 BGB is a mere rule of interpretation (“in doubt”). The parties are therefore free to agree something else. This is in contradiction to the doctrine of the personal legality of the employment relationship, which emerged in the 1930s and which until recently was dominant in the German labor law doctrine. Labor law dogmatics is still finding it difficult to classify forms of waiver of § 613 sentence 1 BGB: If an employee employs third parties to fulfill his duty to perform, this leads to a sub- employment relationship , which has been called indirect employment since the 1930s and which is considered socio-politically undesirable . The wife of a caretaker can be a sub- worker of the caretaker to fulfill the caretaker's duties ( caretaker couple ). Also in contradiction to the doctrine of the personal law of the employment relationship, there is the possibility that an (external) company under civil law appears as an in- group on the employee side ( group employment relationship ).

The prevailing sociological specific definition of worker ( "personal dependence") corresponds to the former Dienstverschaffungsvertrag (now temporary employment contract no not in person) to be fulfilled employment contract, but a contract sui generis to see.

The fact of the existence or absence of a maximum personality of the duty to provide service is also important when it comes to the question of whether a service provider is an employee or a self-employed person (e.g. freelancer ). The case law assumes asymmetrically that a highly personal obligation to perform does not speak for an employment relationship - since according to § 613 sentence 1 BGB this is also the rule for the (free) employment relationship. The contractually agreed option of using auxiliary workers, on the other hand, should speak strongly against employee status. This opens up opportunities to formally circumvent the establishment of an employment relationship.

According to the prevailing doctrine, the employment relationship ends with the death of the employee, so it does not pass to his heirs .

Creditor of work performance, § 613 sentence 2 BGB

The creditor of the work is usually the employer (Section 613 sentence 2 BGB). This is an expression of the personal character of services, which in the tradition of the outdated doctrine of personal rights in labor law is often emphasized as something special in the employment relationship.

From § 613 sentence 2 BGB follows for the normal case the non-assignability of the claim to a work performance according to § 400 BGB and accordingly a non-attachability according to § 851 paragraph 1 ZPO . Section 613 sentence 2 BGB is also a mere rule of interpretation and also applies to employment relationships. It is controversial whether, in the case of a temporary employment contract, the lender assigns his or her right to work to the hirer.

In the normal case it is assumed that the entitlement to work is hereditary ( § 1922 BGB). For personal services (e.g. nursing ) this is controversial. Sometimes it is denied, sometimes a condition subsequent is accepted, and sometimes reference is made to the normal options for terminating an employment relationship (e.g. notice).

Content of work performance

General

The content of the employment contract is essentially determined by freedom of contract : what the contracting parties agree on applies. Due to the typical need for protection of the employee, there are limits to this in the law , collective bargaining agreement or works agreement . Insofar as this framework and the employment contract allow freedom, the employer can determine the content of the work more precisely through his right of direction according to § 106 GewO .

Type of work

The type of work owed depends on the employment contract. Subsequent so-called concretization of the duty to work (example: after 20 years of processing in the area of ​​A insurance, work should now be done in the area of ​​B insurance) is mostly only a theoretical possibility.

Quality of work performance

According to the prevailing opinion, a subjective concept of performance applies in labor law : The same applies to the quality of work . In this respect, too, an individual standard is to be applied, whereby the employee is required, however, to carry out the work assigned to him carefully and with concentration while exercising the possible skills . With the prevailing opinion , the case law on underperformance as a reason for termination ( English low-performer termination ) is in line with: If the employee performs significantly below average work performance, this may under certain circumstances socially justify a behavioral or personal termination within the meaning of Section 1 KSchG .

Place of performance

The employment contract is primarily decisive for the owed place of work. The right of direction according to § 106 GewO must also be taken into account. In some cases, employers limit the place of work to a certain permanent establishment or to a certain branch in order to facilitate social selection in the event of a termination for operational reasons.

See also: relocation

Time of work performance

When it comes to working hours , the provisions of working time protection and those arising from the employment contract i. V. m. A distinction must be made between the contractual working hours resulting from the law, collective bargaining agreement or works agreement, the specification of which may lie in the employer's right to direct according to Section 106 GewO.

See in detail

Procedural law

Cognitive process

Admissibility of a performance action (despite usually futility)

If the employee does not work, although he is obliged to do so, the employer can bring an action for work performance; under the conditions of §§ 258, 259 ZPO also as a future service. Since the prevailing opinion assumes that the work is (always) an unjustifiable act within the meaning of Section 888 ZPO, a performance title cannot be enforced due to Section 888 (3) ZPO. A performance suit is therefore only useful with an application under Section 61 (2) ArbGG . This is an application for the labor court to determine compensation in the event that the employee does not meet his performance obligation.

Interim disposal

In the absence of enforceability, an application for an interim injunction to enforce the employee's claim to work is generally inadmissible due to a lack of legal protection interests. For an application according to § 61 Abs. 2 ArbGG there is no reason for a disposition .

foreclosure

The enforceability of a performance title on work performance of the employee depends on whether the work performance of the employee is considered an unjustifiable act i. S. d. § 888 ZPO considers. Section 888 (3) ZPO prohibits the threat of coercive measures in the event of unacceptable services. The legal issue is controversial. In labor law literature it is mostly assumed that the work performance is fundamentally unjustifiable. Others affirm the possibility of justifiability in some cases. Partly depending on the type of activity , partly depending on the question of whether the work is personally owed.

Exemption from the duty to work

The general duty to work, which comes back to life every day due to the continuing obligation from the employment contract, is interrupted by a large number of exemptions:

  • Default of acceptance by the employer: The employer is in default of acceptance if he does not accept the work properly offered by the employee . The employee offers his job by going to the place of work . Here is realized above all to be borne by the employer operational risk , such as operational disruptions such as machine failure . The employee does not lose his entitlement to remuneration in accordance with Section 615 sentence 3 BGB.
  • Employment bans : Certain statutory employment bans temporarily release the employee from their work duties, but usually also result in loss of wages.
  • Job search : After the termination of a permanent employment relationship, the employer must, upon request, allow the employee adequate time to seek another employment relationship (“application leave”) ( § 629 BGB). The employee remains entitled to remuneration if he is absent from work for an insignificant amount of time because of the leave of absence.
  • The exemption (suspension) from work by the employer frees the employee from his work, which he usually does not have to perform and for which he does not receive any wages.
  • Short-time work / free shifts / agreed work suspension: The reason for these types is a company crisis . A company or service agreement on short-time work, which reduces working hours to "zero", completely releases the employee from his duty to work. However, this means that he loses his right to remuneration. During the release phase of partial retirement , the employee is also released from his duty to work (Section 6 Paragraph 3 Clause 1 lit. b of the FlexAZ collective agreement).
  • Strike : During a legitimate industrial action (strike, lockout ), employees are entitled to refuse to perform their work and are released from their duty to work due to the right to strike . In doing so, however, the right to remuneration expires. To compensate for this loss of earnings there is strike money from the strike fund of the unions .
  • Impossibility : If the employee becomes unable to perform work through no fault of his own , he is released from his work obligation in accordance with Section 275 BGB ( accident , illness , lack of work, power failure ). In accordance with Section 326 (1) of the German Civil Code (BGB), the employee is no longer entitled to wages and thus bears the price risk .
  • Unreasonable working environment due to unacceptable effects of dust , noise , heat , cold , smells or avoidable dangers to life and limb. According to Section 326, Paragraph 2, Clause 1 of the German Civil Code (BGB), the employee's entitlement to wages remains in place if the loss of work is due to an inability to perform work by the employee for which the employer is responsible. Since these dangers are part of the operational risk, the employee's wage entitlement remains in place ( Section 615 sentence 3 BGB).
  • Vacation / public holidays : During vacation (including educational leave , special leave , additional leave ), the employee is released from his duty to work ( Section 1 BUrlG ). Employees may not be employed on Sundays and public holidays from midnight to midnight ( Section 9 (1) ArbZG ). The employer must pay the employee the remuneration for working hours that are canceled due to a public holiday ( Section 2 (1) EFZG ). To prevent absenteeism , Section 2 (3) EFZG provides that employees who are absent from work on the last working day before or on the first working day after public holidays are not entitled to payment for these public holidays.
  • Temporary inability to work: According to § 616 sentence 1 BGB, the employee does not lose the entitlement to remuneration because he is prevented from performing the service for a relatively insignificant amount of time due to a personal reason through no fault of his own. These include weddings , the birth of a wife, an urgent doctor's appointment or summons to courts and authorities.
  • Exercise of public office: If the employee performs public office or voluntary work or is appointed as a witness or expert , he is exempt from the duty to work. This also includes MPs or lay judges .
  • Exercising works council mandate : Members of the works council are to be released from their professional activity without a reduction in pay ( Section 37 (2 ) BetrVG ).
  • Military service : If an employee is requested by the registration authority or a military substitute authority in accordance with the conscription law to report in person or to introduce himself, the employer must continue to pay the wages for the lost working hours ( Section 14 (1) ArbPlSchG ).
  • Right of retention : If wages are due but not paid , the employee has a right of retention in accordance with Section 273 and Section 320 of the German Civil Code (BGB) to the effect that he may retain his work.

Most of the exemptions from the obligation to work are temporary, so that the obligation to work automatically begins again after the exemption has ended.

consequences

The precise description of the scope of the work tasks also gives the employee the certainty of which responsibilities he has and which he does not. The division of labor must prevent disputes over competencies. The concretization of the work requirement allows among others the employer, by target-performance comparisons reduced services or failures to detect. Many exemptions from compulsory work are associated with a loss of pay.

Individual evidence

  1. ↑ cf. among many: BAG, judgment of 23 June 2009, Az .: 2 AZR 606/03 = NZA 2009, 1011
  2. ↑ Thomas Lakies, drafting contracts and terms and conditions in labor law , 2011, p. 101
  3. ↑ Monika Anders, The Civil Code: §§ 611 - 620 , Volume 2, Part 3, 1997, § 611, Rn. 1359
  4. ↑ BAG, judgment of December 11, 2003, Az .: 2 AZR 667/02 - juris Rn. 90
  5. ↑ BAG, judgment of May 16, 2000, Az .: 9 AZR 277/99 - juris Rn. 18 = NZA 2000, 1236
  6. ↑ BAG, judgment of January 17, 2008, Az .: 2 AZR 536/06 = NZA 2008, 693; BAG, judgment of February 10, 2005, Az .: 2 AZR 584/03 = NZA 2005, 1207 Os. = NJOZ 2005, 4238; BAG, judgment of June 3, 2004, Az .: 2 AZR 386/03 = NZA 2004, 1380; BAG, judgment of December 11, 2003, Az .: 2 AZR 667/02 = NZA 2004, 784
  7. ↑ An overview of the dispute is provided by Wolfdieter Küttner / Jochen Kreitner, Personalbuch 2013 , 20th edition, Beck, Munich, 2013, Arbeitsspflicht , Rn. 21 mwN
  8. ↑ Willi Gross, Arbeitsrecht 1 , 1992, p. 86 ff.
  9. ↑ Harald Schliemann (Ed.), Labor Law in the BGB: Commentary , 2002, p. 376 ff.
  10. ↑ Martin Krömer / Jan Ruge / Klaus Pawlak / Henning Rabe von Pappenheim (eds.), Labor Law in the Public Service , 2017, p. 545
  11. ↑ Monika Anders, The Civil Code: §§ 611 - 620 , Volume 2, Part 3, 1997, § 615, Rn. 181 ff.
  12. ^ Ivonne Faerber / Daniela Turck / Oliver Vollstädt, Dealing with Difficult Employees , 2006, p. 47