The employment contract: 6 answers from a lawyer
One of the most important contracts in our economic life is the employment contract. It regulates all modalities of the employment relationship of employees in Germany. For around 41 million employees, the employment contract forms the basis of their economic existence. But what must be included in an employment contract? What should employees pay particular attention to? We clarify the most important questions for you.
Table of contents:
- Does an employment contract have to be concluded in writing?
- What minimum provisions must be included in the employment contract?
- What applies if the employment contract does not contain any explicit provisions on issues such as vacation or notice periods?
- Are fixed-term employment contracts always permissible?
- Are provisions in a written employment contract always effective?
- Should I have my employment contract checked by a lawyer?
Do you have questions about your employment contract? We will advise you in detail and individually!
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1. does an employment contract have to be concluded in writing?
No, the employment contract is not subject to any formal requirements. It can therefore also be concluded verbally without any problems. However, oral employment contracts can be problematic if disputes arise in relation to the employment relationship.
In order to avoid disputes and to have clear regulations in case of doubt, employment contracts are usually concluded in writing. However, even in the case of verbal employment contracts, employers are actually obliged under the Evidence Act to record the essential contents of the contract in writing and to hand these over to the employee within one month. If you do not comply with this obligation, this will have consequences in the event of a dispute before the labor courts. This is because the burden of proof regarding the circumstances of the employment relationship will then regularly fall to the employer.
There is a special rule for fixed-term employment relationships. The fixed-term agreement must be in writing. Therefore, if a fixed-term employment contract is only concluded verbally, the fixed-term agreement is invalid. The employment contract is therefore concluded as an open-ended employment relationship.
2 What minimum provisions must be included in the employment contract?
Section 2 of the NachG can be used to determine the minimum content of an employment contract. This lists the essential provisions that the employer must set out in writing with regard to the employment relationship. These are
- the name and address of the contracting parties,
- the date of commencement of the employment relationship,
- for fixed-term employment relationships: the foreseeable duration of the employment relationship,
- the place of work or, if the employee is not to work at only one specific place of work, an indication that the employee may be employed at various locations,
- a brief characterization or description of the work to be performed by the employee,
- the composition and amount of pay, including bonuses, allowances, premiums and special payments as well as other components of pay and their due dates,
- the agreed working time,
- the duration of the annual vacation,
- the deadlines for terminating the employment relationship,
- a general reference to the collective agreements, works or service agreements applicable to the employment relationship.
3. what applies if the employment contract does not contain any explicit provisions on issues such as vacation or notice periods?
If there is only a verbal employment contract in which vacation or notice periods were not discussed at all, or if there are no corresponding provisions in the written employment contract, this does not mean that there are no provisions in this regard.
Rather, there are minimum regulations in the law. For example, the Federal Leave Act stipulates a minimum leave entitlement for employees of 24 working days per year. This corresponds to a vacation period of 4 weeks.
There are also explicit regulations for notice periods in Section 622 BGB. If no other provisions have been effectively agreed in the employment contract, the statutory provisions apply.
However, applicable regulations can also be derived from the circumstances of the employment relationship if these have not been set out in writing in an employment contract. For example, an implied regulation of the work activity, working hours and place of work can also be derived from a consistent practice of employment.
4. are fixed-term employment contracts always permissible?
No, certain regulations apply to fixed-term employment contracts. For example, fixed-term contracts without objective grounds are only permitted up to a total duration of two years. During this time, fixed-term contracts may be extended a maximum of three times in total. If this regulation is breached, the employment relationship is automatically deemed to be concluded for an indefinite period.
The law only permits longer fixed-term contracts without a material reason in some special constellations, such as when a new company is founded or when an employee over the age of 52 who has been unemployed for at least 4 months is hired.
However, fixed-term contracts based on a specific objective reason, such as a replacement during an employee's parental leave, are permitted without restrictions as long as this objective reason exists.
5. are provisions in a written employment contract always effective?
No, just because a provision is agreed in an employment contract does not mean that it is effective. The provisions in employment contracts are regularly regarded as the employer's general terms and conditions and must therefore meet certain requirements. Furthermore, it is not permitted to deviate from all legal requirements in the employment contract.
If, for example, a vacation of only 12 working days per calendar year is agreed in the employment contract, this violates the statutory minimum requirement of the Federal Leave Act. If provisions in the employment contract are invalid, the statutory regulations apply.
6 Should I have my employment contract checked by a lawyer?
Your employment contract and the provisions it contains will have a significant impact on your life in the future. With clever wording, it is possible to shape the scope of the employment relationship in favor of the employer or in favor of the employee. As a rule, the employer will therefore be keen to create the best possible position for himself.
Employees usually lack the necessary expertise and experience. It is therefore advisable to have a new employment contract checked by a lawyer before signing it.
A lawyer experienced in employment law will quickly find clauses worthy of objection and will considerably improve your position in the employment relationship vis-à-vis the employer by cleverly rewording existing provisions.
Specialist lawyer for employment law for employment contracts
Do you need an experienced and assertive partner in employment law? Our lawyers will represent you with legal certainty in all matters relating to dismissal, termination agreements or severance payments. Lawyer Esther Richter is also a specialist lawyer for employment law. Get in touch with us now. We will be happy to advise you on your specific and individual case and also represent you before the labor court or against your employer.
Contact the law firm Haas und Kollegen now:
Rudolf-Diesel-Str. 5, 65760 Eschborn near Frankfurt
