Employment contract in labour law – All you need to know

In German labour law, the employment contract regulates the relationship between employer and employee. The employment contract is therefore a sub-form of the employment contract under German law (§611 et seq. BGB).

Essential agreement of the employment contract is the provision of the agreed service by the employee and the obligation of the employer to pay remuneration for the service provided in return.

The prevailing idea of private autonomy in German civil law also applies to labour law and thus also to the employment contract. The contracting parties (employer and employee) are therefore free to decide with whom they conclude an employment contract and what its content should be. However, private autonomy can be restricted with regard to the employment contract by collective agreements or company agreements.

The employment contract in employment law: form and components

In principle, an employment contract does not require any form and can therefore also be issued orally. However, in such a case the employee must be informed in writing of the essential elements of the employment contract within one month. If it is a fixed-term employment contract, the time limit must also be fixed in writing. An employment contract for an indefinite period of time is considered to be an employment contract of indefinite duration if the employment relationship does not end automatically by an agreed fixed term or any other time lapse.
As a rule, the employment contract also includes a probationary period during which shorter notice periods apply to both parties. The employment contract also contains the decisive conditions of the employment relationship. These include, for example, the start of employment, the possible duration, a description of the work to be performed, holiday entitlements, notice periods and remuneration. However, employment contracts may also contain ancillary obligations for the employee, such as obligations of confidentiality or non-competition clauses.

In principle, the employer has a general duty of care towards his employee under an employment contract.

In practice, employment contracts are issued according to a model, and special regulations are supplemented accordingly. Employment contracts are also subject to the law of control of general terms and conditions. The §§305 ff. BGB regulate the control of general terms and conditions, which also contain a large number of clause prohibitions for the employment contract. If a clause of the employment contract is null and void, this does not automatically lead to the nullity of the entire contract, but rather a correction or the statutory regulation takes its place.

The employment contract

The service contract obliges a party to the contract to pay a fee for a specific service. The remuneration is only paid after the service has been provided. The employment contract is therefore a sub-form of the service contract. However, a distinction must be made between dependent service contracts and independent (free) service contracts.
The employment contract is also a dependent employment contract. The independent service contract is characterised by the fact that the contractual partner has a certain personal freedom and works in a self-determined manner (self-determination of working hours & manner of providing services).

In contrast to the contract for work and services, an action is owed and not a success resulting from the action itself.

The service contract is regulated by law in §611 to §630 BGB. The legal regulations are predominantly tailored to the free service contract. More specific laws, such as the Dismissal Protection Act (Kündigungsschutzgesetz), contain regulations on the dependent contract of employment (employment contract).

Compliance with the written form is not required for the employment contract, but it always appears to be sensible for both parties to the contract.

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more about labour law: Labour law in hospitals – Labour law in the pharmaceutical industry – Labour law in the care of the elderly- Labour law in the railway sector – Labour law cases– Labour law and corona

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Termination because of Corona – What to do?Duration of entitlement to unemployment benefit

 

The coronavirus has a strong impact on the entire working environment. We are currently receiving numerous inquiries on this topic every day and we notice that there is a lot of uncertainty.

⏩ On this page we have summarised the most important questions on the subject of termination due to corona.

⏩ In addition, we have collected the most frequently asked questions for employees, employers and works councils on labour law and Corona and published the corresponding answers in a separate section.

Overview
Is a dismissal because of Corona even possible?
Termination without notice because of Corona
Termination due to Corona
Termination agreement due to Corona
Corona Virus – Does the employer have to pay?
The most frequently asked questions on the subject of „Labour law and Corona“.
Any other questions? We help! (Free initial assessment)

Translated with www.DeepL.com/Translator (free version)

 

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