Right to lie
In civil law, the right to lie or the right to lie refers to the possibility of a contracting party not answering the other contracting party's inadmissible questions with the truth during contract negotiations .
Employment Law
In labor law , job seekers have the right to not answer at all or not truthfully answer inadmissible questions from the employer during an interview .
principle
In principle, lying is not punishable, but a contracting party can withdraw from a contract by contesting it if it was fraudulently deceived when the contract was concluded. A deception lies in the provocation of an error , i.e. a misconception about facts . This deception is fraudulent if the applicant has knowledge of a fact that the future employer does not and the fact is decisive for the conclusion of the contract. In principle, the illegality is indicated in the case of fraudulent deception , but the deception is not illegal if the employer's question was inadmissible. A question from the employer is inadmissible if it has nothing to do with the future activity ( Section 8 (1) AGG , Section 26 BDSG ).
The right not to answer individual questions or to consciously say something untrue arises from the conflict of interests between employer and employee . It is in the employer's interest to learn as much as possible about the applicant and the employee's interest in having to reveal as little as possible about himself. The applicant's personal rights set limits to the need for as extensive information as possible for the future employer in the interview .
Personnel questionnaires as part of the recruitment process require the approval of the works council ( Section 94 BetrVG ).
Examples of inadmissible questions
In the cases mentioned below, the Federal Labor Court (BAG) puts the protection of the applicant's personal rights above the employer's need for information.
- Question about membership in a party , trade union , religious community (exception: employment in companies with a tendency , § 9 AGG)
- Question about last earnings (if it is irrelevant for the desired employment relationship);
- Question about existing or planned pregnancy ;
- Questions about race, ethnic origin, gender, age or sexual identity. This results from the prohibition of discrimination when hiring in accordance with Section 2 Paragraph 1 No. 1, Section 1 of the AGG.
- Question of criminal convictions in the field of property offenses (except setting at a bank or in which to manage the candidate funds in other areas, has);
- Ask about severely disabled status if it is used for discrimination purposes. The question is permissible insofar as a severe disability would impair the fulfillment of the specific contractual obligations. In the case of an existing employment relationship, the question of the existence of a severe disability or equality with severely disabled persons is permissible if the employer is pursuing the purpose of being able to behave in accordance with the law, for example in the social selection of dismissals in insolvency .
statistics
Studies have shown that many applicants give false information about their professional career, although this information is crucial for the job in question. Specifically, 30% of the data on employment, 18% of the qualifications, 13% of the salary data, 11% of the data on the curriculum vitae, 6% of the data on the relationship to the former employer, 4% on the position and 1 % of the information on managerial responsibility .
Tenancy law
In tenancy law , too , the prospective tenant only needs to answer truthfully to permissible questions from the landlord . Questions about the identity of the tenant and other people who want to move in or questions about net income and solvency such as questions about a garnishment of income or about rent debts from the previous tenancy are permitted. However, questions about the person of the previous landlord or questions about the nationality and ethnic origin of the tenant, his religion or sexual orientation are not permitted.
literature
- Dieter Medicus : General part of the BGB , 10th edition 2010, CF Müller ISBN 978-3-8114-9652-1 . "Right to lie", para. 791 ff.
Individual evidence
- ↑ Lauer: Interview inadmissible questions onrechtstipps.net, 2005, 334. ( Page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- ↑ BAG, judgment of May 19, 1983, Az. 2 AZR 171/81, full text .
- ^ BAG, judgment of October 15, 1992, Az. 2 AZR 227/92, full text .
- ^ BAG, judgment of February 6, 2003, Az. 2 AZR 621/01, full text .
- ↑ Disclosure of the severe disability website of the integration offices, specialist lexicon, January 15, 2014.
- ↑ BAG, judgment of February 16, 2012, Az. 6 AZR 553/10, full text .
- ↑ What employers ask and when applicants can lie. Haufe-Online-Redaktion, July 23, 2015.
- ^ Norman M. Spreng, Stefan Dietrich: Studies and career advice for lawyers , Springer Verlag 2006, ISBN 978-3-540-23642-9 , p. 184.
- ↑ OLG Koblenz , decision of May 6, 2008, Az. 5 U 28/08, WuM 2008, 471.
- ^ LG Itzehoe , judgment of March 28, 2008, Az. 9 S 132/07, full text = WuM 2008, 281.
- ^ LG Berlin , judgment of June 7, 1993, Az. 62 S 85/93
- ↑ Angelika Sworski: Questionnaires from the landlord? When does the tenant have a right to lie? January 26, 2015 (with overview of case law).
