Employment contract (Germany)
According to German law, an employment contract is a contract under private law between two contractual partners to establish an employment relationship . The two contractual partners are called employer and employee .
There is therefore not an employment contract because an "employee" is involved in the sociological sense, but one has the status of an employee in the legal sense on the basis of an employment contract (only) in relation to the employment relationship established with it.
The law of the employment contract is part of labor law .
Service contract i. S. d. Section 611 BGB
The employment contract is (according to the prevailing opinion) a sub-case of the service contract according to the German Civil Code (BGB). Terminological confusion sometimes reigns: if one delimits the "service contract" from the "employment contract", one means the "free service contract" and not generally the "service contract within the meaning of § 611 BGB". So there is a "free service contract" and a dependent service contract, called an employment contract. The service contract i. S. d. § 611 BGB is a private law , mutual agreement . Accordingly, the employment contract. With the qualification as a service contract i. S. d. § 611 BGB separates the employment contract from the work contract . The employee owes only "work performance", not "concrete work success". In the employment contract, unlike the work contract, there should be a lack of "a definable work that can be attributed to the contractor as a separate service and that can be accepted". Sometimes one skips this demarcation and distinguishes the employment contract from the work contract directly by the "(degree) of personal dependence".
The employment contract is widespread as a service contract i. S. d. 611 BGB, which is designed to establish a continuing obligation . This means different things. It is sometimes assumed that an employment contract is aimed at establishing an employment relationship "on a permanent basis" and that the longer contract duration leads to dependency. The hourly wage earner shows that this is incorrect. Furthermore, the qualification as a "continuing obligation" should mean that the contractual relationship to be established "is not aimed at the exchange of individual services, with the fulfillment of which it expires. Rather, it ends with the realization of a termination condition (time limit, termination, termination agreement) . "
Difference to the service contract
It is unclear and controversial what distinguishes an employment relationship (employment contract) from a free employment relationship (employment contract). The legislature codifies this in § 611a of the BGB. For practice, the prevailing understanding is cemented:
“(1) The employment contract obliges the employee in the service of another to perform instructions-bound, externally determined work in personal dependence. The right to issue instructions can concern the content, implementation, time and place of the activity. Those who are not essentially free to organize their activities and determine their working hours are bound by instructions. The degree of personal dependency also depends on the nature of the respective activity. ...
(2) The employer is obliged to pay the agreed remuneration. "
The main performance obligation of the employee is the "personally dependent" work (§ 611a Paragraph 1 BGB), which is reciprocal to the employer's obligation to pay the agreed remuneration (§ 611a Paragraph 2 BGB).
In addition, the duty to work is either another main duty of the employer or at least an enforceable ancillary duty.
According to the prevailing opinion, an employee can only be a natural person.
Offer and acceptance
An employment contract, like any other mutual contract, comes about through offer and acceptance:
“An employment relationship comes about through an employment contract. For the conclusion of an employment contract, two corresponding declarations of intent are required, the offer (application) and the acceptance, §§ 145 ff. BGB "
The declarations of intent can also be implied, i. H. be made tacitly:
"A contract can come about through consistent coherent behavior (real offer and its implied acceptance)"
This can be the case, for example, if "services and remuneration are mutually exchanged over a period of several years".
Freedom of form of the employment contract
An employment contract can be concluded orally or in writing. Its effectiveness does not depend on adherence to a specific form. An employment contract can also be agreed without a "written contract" (in the sense of a contract document).
In the case of contracts that have not been concluded in writing, however, the employer is obliged, in accordance with Section 2 of the Evidence Act, to put down the essential contractual conditions in writing at the latest one month after the agreed start of the employment relationship, to sign the minutes and hand them over to the employee.
Regulatory content of the employment contract
The contractual content of the employment contract can be freely agreed by the parties, provided that labor law does not provide for any mandatory provisions . Such higher-ranking regulations can arise from a law, a collective agreement or a works agreement . A provision in the employment contract that violates a legal prohibition is null and void, BGB. In the case of mandatory higher-ranking regulations, the employment contract can repeat the content of the regulation in a declaratory manner; in the case of so-called semi-mandatory regulations, deviations from them can be made in favor of the employee. But there are also labor law provisions from higher-ranking legal sources that are mandatory , e.g. B. BGB.
An employment contract can contain the following elements:
- Information on the contracting parties
- Information on the beginning, duration and end of the employment contract:
- Information on work performance:
- Secondary obligations:
- Final provisions:
Employment contract law
On the basis of the employment contract, the employee is obliged to perform the work in accordance with the contract; the employer must grant remuneration in return. The amount of the remuneration is based on the agreement in the employment contract or on an applicable collective agreement . If no remuneration has been agreed, the usual remuneration for comparable activities must be paid. In addition, further performance obligations can be agreed in the employment contract. Insofar as the content, time and place of work are not specified in the employment contract, their determination is subject to the employer's right of direction , which the employer can exercise at its reasonable discretion ( Trade Regulations ).
An employment contract is usually concluded for an indefinite period, but under the conditions of the Part-Time and Fixed-Term Employment Act , a fixed-term employment relationship is also permitted. In the case of new hires , a trial period is usually agreed, which may not exceed 6 months.
In many cases, the other rights and obligations of the employment contract parties, such as granting vacation , continued payment of wages in the event of illness or notice periods, do not arise from the employment contract itself, but in particular from labor laws, collective agreements or company or service agreements . On the whole, the employment relationship is flanked by a considerable set of labor law regulations (including protection against dismissal , restriction of time limits , occupational health and safety , Working Hours Act , Works Constitution Act) and its structure is thus partially withdrawn from the decision-making options of the contracting parties. This is a consequence of the structural power imbalance of the contracting parties and the result of the welfare state intention, which is based on the fact that the majority of the population earns their living through dependent work.
With the establishment of an employment relationship through the employment contract, main and secondary obligations or other obligations arise for both the employee and the employer. These are in particular, for the employer, the duty of care ( BGB), employment obligation , the obligation to leave grant, equality duty, obligation to provide compensation for expenses and damages the worker to his use at work things insight into the personnel files , information disclosure, mandatory for issuing certificates .
The law on proof of the essential conditions for an employment relationship ( Evidence Act - NachwG) obliges the employer to provide the employee with a record of the essential working conditions at the latest one month after the start of the employment relationship ( NachwG ). If the employer violates the obligation to provide evidence, he may U. compensation for damage liable to be, or it may be the distribution of pleading and proof load change in the process for the worse.
Performance disruptions in labor law are generally handled according to the rules on performance disruptions in general law of obligations . However, the particular economic and social dependency of the employee on the employer leads to modifications of the employee's liability .
The following constellations are to be considered in detail:
Disturbances in performance on the part of the employer
Delay in payment of wages
The employer is in default if he does not pay the agreed wages at the agreed time. If no agreement has been made about the time of payment, the wages according to BGB are to be paid at the end of the remuneration period (usually on the last day of the respective calendar month). The due date itself does not determine the point in time when the wages must be received in the account.
In principle, the defaulting debtor is liable in accordance with German Civil Code for all damage and / or costs incurred by the obligee as a result of the default. In accordance with German Civil Code (BGB), interest is charged at five percentage points above the respective base rate from the start of the delay . The assertion of higher interest damage or other damage caused by default is not excluded. In labor law, however, this does not apply (due to a corresponding application of ArbGG) to the costs of a pre-trial legal representation. The employee must therefore pay the costs of any lawyer he may have brought in himself and, despite the delay, cannot demand reimbursement from the employer.
If the employer is in default for a period not yet clearly defined by the case law, the employee can - after prior notice - withhold his work. Nevertheless, the employer remains obliged to pay the wages on an ongoing basis; the employee does not have to rework these periods (following the elimination of the right of retention by settling the wage claims). A considerable delay in payment by the employer also entitles the employee to terminate the employment relationship without notice after an unsuccessful warning . In this case, the employer is obliged to compensate the employee for the loss of wages caused by the termination without notice (until the end of the normal notice period).
Violation of secondary obligations (especially protective obligations)
If the employer culpably violates his ancillary obligations from the employment relationship, he is generally liable to the employee for compensation for the damage according to § ff. BGB , earlier according to the principles of positive breach of contract (pVV).
However, the employer's liability is considerably limited in the event of an accident at work or on the way to and from the employee. In these cases, the employee is entitled to compensation (regardless of fault) for damage to health from the employers' liability insurance association within the framework of the statutory accident insurance . At the same time, according to SGB VII, a claim by the employee against the employer or against work colleagues due to a (culpable, but not deliberately caused) industrial accident is excluded.
delay of acceptance
The employer is in default of acceptance if he does not accept or rejects the work offer of the employee. In these cases, he remains obliged to pay the wages in accordance with BGB without the employee having to rework the working time lost due to the default in acceptance (so-called fixed transaction). A specific job offer by the employee is dispensable if the employer has indicated (for example by giving notice) that he will reject the work of the employee (in the example mentioned after the period of notice has expired).
If the employee has other income (from his work) while the employer is in default of acceptance, he must have this income offset against the above-mentioned wage entitlement.
Disturbances in performance on the part of the employee
Delay in work
Impossibility of work performance
If the work performance of the employee becomes impossible, a differentiation must be made according to fault:
- Debt of workers the impossibility, he loses the right to wages, not provided - such as in pregnancy of the worker - the risk by a special law (which here Maternity Protection Act ) was shifted to the employer.
- If the employer is responsible for the impossibility, the employee retains his right to wages.
- If neither of the parties is responsible for the impossibility, the principles of operational risk theory are used to assess whether the wage payment claim continues or not ( sentence 3 BGB).
Violation of ancillary obligations of the employee
The employee's liability for damage to the employer for which he is responsible is regulated differently from the general law of obligations: he is not liable at all for slight negligence, only proportionally for slight negligence and only proportionally for gross negligence or willful intent (in principle) in full.
Suspension of employment
Generally considered it comes to the rest of the employment relationship , especially during the parental leave , but also in a lawful strike . If the employee is doing military or community service , ArbPlSchG, ZDG expressly order the suspension of the employment relationship. During this time, the main obligations of the service contract - the performance of services against payment of wages - do not exist.
Termination of an employment relationship
The employment contract is usually concluded for an indefinite period (so-called permanent position ); there are various ways of terminating an employment relationship. A time limit is only permitted to a limited extent within certain legal requirements. The indefinite employment relationship terminates regular termination of a party or by termination agreement , each written form is prescribed, BGB. The employment contract automatically ends at death of the employee.
- Prize, Individual Labor Law, 5th edition, 2017, Rn. 169
- Schaub / Linck, Arbeitsrechts-Handbuch, 17th edition 2017, § 29 Rn. 4th
- Schaub / Linck, Arbeitsrechts-Handbuch, 17th edition 2017, § 29 Rn. 7th
- Schaub / Linck, Arbeitsrechts-Handbuch, 17th edition 2017, § 29 Rn. 7th
- See Daniel-René Weigert, ArbRAktuell 2017, p. 557 with further references
- Article 2 of the law of February 21, 2017 ( BGBl. 2017 I pp. 258, 261 )
- See Beckmann, NZA 2004, 1131 with further references
- BAG of April 9, 2014 - 10 AZR 590/13 - Rn. 26th
- BAG FamRZ 1995, 1572.
- BAG NZA 2007, 573.