As described in Part One of this series, there are many misconceptions relating to German labour law that instead of being critically examined, tend to be simply passed on by ‘word-of-mouth’. This series aims to uncover and clarify frequently occurring legal errors.
In this second part, we tackle common errors relating to the formal requirements of an employment agreement, the duty to tell the truth at a job interview and the probation period.
Only written employment agreements are effective
Not true! An employment agreement is valid even if the employer and the employee have agreed on the essential components of the agreement orally. This includes not only the contracting parties, but also the nature and the start date for the activity to be performed by the employee. In addition, the parties to the employment agreement must have agreed that the work is to be remunerated. If the parties to the employment agreement have not stipulated the amount of the payment for the work, the customary remuneration is deemed to be agreed. The scope and duration of working time are also customarily expressly agreed, but can be derived from the circumstances, such as the working time customary in the organisation. Further regulations, for example concerned with the way of rendering services, can also be made later by the employer via its legal right to give instructions.
However, the Notification of Employment Conditions Act requires the employer to record the contents of the essential contractual terms which have been agreed in writing. This applies not only to the start of the employment relationship, but also for all subsequent amendments. For example, this requirement will include information on the start of the employment relationship, the workplace, the composition and amount of payment for the work and notice periods. Creating a written record serves the purpose of securing evidence concerning the agreed working conditions. However, it is not a precondition for a valid working relationship.
An applicant must always tell the truth at a job interview
Not true! The employee must only reply truthfully to a question which the employer is allowed to ask. If the question is inadmissible, the employee has a right to tell a lie. For example, questions about pregnancy or family planning are not permitted. Further, questions about illnesses that do not relate to suitability for the job on offer are also inadmissible. A public employer may only ask an applicant for a public job post about pending investigations and penal proceedings if these proceedings could substantiate doubts about the applicant’s personal suitability for the prospective activity.
Such doubts exist according to case law, for example, in the case of an applicant for a post as a research associate in a Penal Law faculty against whom criminal proceedings for a false affidavit are pending. The employer can ask an applicant for a job as a driver about any suspension of his or her driving licence still in effect at the start of the proposed job, or about previous convictions for road traffic crimes. The applicant would have to reply to these questions truthfully. This applies in any case if a previous conviction has been included in the applicant’s clearance certificate. On the other hand, an employer may not ask an applicant for a post as a driver about previous convictions relating to offences against property. If the employer does ask, the applicant would not have to answer truthfully.
If no probation period is agreed in the employment agreement, the worker enjoys immediate protection against dismissal
Not true! During the probationary period, the employer has the opportunity to check the employee’s suitability for the role. But the employee can also use this time to decide whether the tasks to be carried out and the situation in the organisation fulfil his or her expectations. Even if the employer and the employee have not agreed on an explicit probation period, the Unfair Dismissal Act only becomes applicable when the employment relationship has existed for more than six months without interruption and also, as a rule, where more than ten people are employed in the organisation. The fact that the employer has not included any provisions relating to the probation period in the employment agreement makes no difference to this. Naturally, though, the parties to the employment agreement can also agree that the Unfair Dismissal Act is to apply to the employment relationship from the very first day.
However, not agreeing a probation period in the employment agreement is not without consequences. In this case, a four-weeks notice period as of the fifteenth or the end of a calendar month applies according to the German Civil Code from the first day. On the other hand, if a probation period is agreed for a term of a maximum of six months, the employment relationship can be terminated with a shorter period of two weeks.
In conclusion, the second part of this series on popular legal misconceptions in employment law demonstrates that: