The employment contract stipulates that the employee has to perform certain work , while the employer assumes the obligation to pay wages as the most important consideration . The employment contract is a type of service contract (§ ff. BGB ) in which - in contrast to the work contract - the employee owes a performance (effort), but no success . In the case of service and employment contracts, mere action is sufficient . The salary is according to to provide the result of an employment relationship and the employer after work performance para. 2 BGB ( BGB), the employee is therefore to advance committed. According to the contract theory , the employment relationship begins with the conclusion of the employment contract, but not with the later integration of the employee into the company . With the start of work, the employee must perform his work during working hours and continue until the end of work. The employment relationship has the character of a continuing obligation .
When the business is transferred , the acquiring employer assumes the rights and obligations from the employment relationships existing at the time of the transfer ( (1) BGB). The Federal Labor Court (BAG) ruled in December 1957 that the general part of the BGB also applies to the employment relationship ( e.g. challenge , fraudulent deception ), unless individual provisions are incompatible with the nature and content of an employment relationship. In particular, an employment relationship ends
- at the end of the contractual time limit or
- upon reaching the regular retirement pension or
- by termination agreement or
- by termination .
The Federal Statistical Office understands a normal employment relationship to be a dependent employment relationship “which is carried out full-time and for an unlimited period”. A number of statutory and collective bargaining protection provisions are linked to normal employment relationships with no time limit . Characteristics are full-time employment , regular working hours of a certain length and time distribution, constant job , existing representation of interests for working conditions or the permanent stability of the employee status. If one of these characteristics is missing, there is an atypical employment relationship . It has different characteristics that can lead to disadvantages for the employee under labor law or social security law . These include in particular part-time , Temporary employment , freelancers , marginal employment , homework , chain employment , temporary employment , internship , bogus self-employment , teleworking or temporary work . Atypical employment relationships ( precarious work ) emerged as part of the flexibilization of the labor market in order to reduce unemployment . There are also forms of employment that are not subject to labor law, e.g. B. the employment relationship of civil servants , soldiers and judges as well as employment on the basis of open-ended service contracts or specifically defined fee contracts . In general usage there are also special forms of employment, for example student jobs , temporary jobs or the employment of domestic staff , to which the rules of labor law apply.
An indirect employment relationship exists when an employee is employed by an intermediary who is himself an employee of a third party and the work is carried out directly for the third party with the knowledge of the third party.
Employment relationship and employment relationship
If the agreements of an employment contract violate morality in terms of content , motivation or purpose , the employment contract is void in accordance with (1) BGB . This "faulty employment relationship" is also the basis for a violation of a prohibition law according to BGB. This applies in particular to an agreement on work that is intended to violate general criminal laws. While labor law may not accept immoral or illegal work content, the employment relationship under social law is value-neutral, because the Federal Social Court (BSG) ruled in August 2000 that immoral activity can establish an employment relationship and therefore lead to compulsory insurance . One of the main differences between employment and employment is therefore the content of the job.
- Clamor Mittelbach, Termination of the employment relationship due to political expression of opinion , 1998, p. 19
- BAGE 5, 159, 161
- Federal Statistical Office, Statistical Yearbook , Normal Employment Relationship , 2012, Section 13
- Sylvana Schulze-Pfefferkorn, The employment relationship in insolvency , 2011, p. 17
- BAGE 4, 93, 98
- PAGE 4, 274, 275
- BSG 87, 53, 60