A new version of the German Evidence Act is currently being discussed to implement the EU Transparent and Predictable Working Conditions Directive. The Evidence Act (the law of proof of substantial conditions applicable to the employment relationship) is certainly not one of the best-known labour laws in Germany, but the proposed changes could be significant in practice.
The current proposed amendments are based on the Transparent and Predictable Working Conditions Directive (2019/1152), which entered into force on 31 July 2019 (see here for more detail). This Directive aims to create more transparency regarding employment contract conditions in Europe and must be implemented by 1 August 2022. For quite some time, nothing happened with regard to implementation in Germany.
However, on 14 January 2022, a draft bill was published. This draft bill was adopted on 6 April 2022. It includes amendments to the Evidence Act, the Vocational Training Act, the Trade Regulation, the Temporary Employment Act, the Maritime Labour Act, the Part-Time Work Act and the Fixed-Term Work Act. The German Federal Parliament debated it for the first time on 12 May 2022. Following the debate, the draft was referred to the lead committee for labour and social affairs for further discussion. However, we do not expect huge changes within the scope of the parliamentary process.
In Germany, the Directive will be implemented mainly by extending the employer’s information obligations, which are already regulated in the Evidence Act. At first glance, it appears the new requirements relating to the maximum duration of a probationary period, multiple employment, predictability of working conditions and especially the composition and level of pay may cause headaches for employers.
In Germany, the Evidence Act already regulates extensive information obligations so that workers are aware of their contractual conditions. Section 2 of the Evidence Act stipulates, among other things, that the following should be included:
If these points are not regulated in an employment contract, organisations must set down the essential contractual conditions in writing no later than one month after the start of the employment relationship, sign the minutes and hand them over to the employee.
The purpose of the Evidence Act is to provide clarity and protect employees who do not have a (written) employment contract. This serves the second aim of the Evidence Act: to regulate working conditions in smaller organisations as well as in atypical employment relationships and to avoid illegal employment. The third function of the Evidence Act is to avoid disputes over working conditions. It is important to note under the current law, there was no provision for sanctions if employers’ information obligations were not fulfilled or not fulfilled properly. This is also changing.
The following changes are particularly likely to have an impact:
The employer’s duties to provide evidence are partially supplemented and new duties to provide information are introduced on the probationary period, the scope of entitlement to further training, overtime, on-call work and the identity of the pension provider for occupational pension schemes. The duties to provide information in the event an employee is posted abroad are also extended.
For companies, the exciting question now is what effects the planned changes will have. Do all employment contracts now have to be changed? The answer is short: No. Unfortunately, we need to add a ‘but’ here. Other ways of providing information are envisaged, meaning that old contracts do not have to be changed. However, new employment contracts should be reviewed and adjusted after the law is passed. In addition to amending contracts, it is also possible to hand out an information sheet to the employee so that the duty to inform is fulfilled. There is a provision that means that employees whose employment relationship already existed before 1 August 2022 must also be informed of all newly added information if they request it.
It is interesting that the German draft law imposes a written form requirement and excludes the electronic form, when the Directive permits the use of electronic means of communicating essential information.
In future, the absence of, or incorrect, information will constitute an administrative offence that can be punished with a fine of up to EUR 2,000.
In addition, there are changes to the deadlines that exist for providing information. Under the existing provisions, the employer had to inform an employee of the essential terms of his or her contract within one month. When these changes are implemented, shorter time limits will apply, depending on the subject matter of the information. As a rule of thumb, the information must be provided at the latest on the first day of work performance.
Finally, there is an interesting provision which stipulates that the employer must also provide information on the requirements for protection against dismissal and the deadlines for bringing an action for unfair dismissal. The legislator has made it clear in the explanatory memorandum that this obligation, even if breached, will not render a dismissal legally invalid. Nevertheless, employee representatives may raise the objection that the dismissal is invalid if incorrect information is provided. This argument must already be countered, because although the directive also mentions sanctions, it refers to fines and not to the invalidity of dismissals.
Overall, we believe that the draft law will lead to an increased administrative burden, especially for organisations that cannot refer to collective agreements or works agreements to demonstrate working conditions. Employers can already take precautions by drafting the information required after the law is passed. In addition, organisations should prepare themselves for the fact that there may be requests that need to be processed quickly after the changes come into force and have the appropriate processes in place to do so. More generally, German employers should prepare themselves for these changes, take a close look at the implementation and amend their standard employment contracts to comply with their legal requirements, and to avoid fines.
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