Why is a written construction necessary
Always in writing
An employment contract is a service contract characterized by the social dependency of the employee. The employment relationship entered into does not have to be exclusively in writing. There is also the possibility of entering into an employment relationship orally or tacitly through conclusive action by the contracting parties.
Without a written employment contract, there are various disadvantages for the employee and the employer. In the case of later claims on the part of the employee, such as vacation entitlements or supplements, this is the burden of proof. Orally agreed regulations, special payments or the like are difficult to prove. In the case of an oral contract, the details once agreed are not available in writing. There is also a risk for employers that employees will demand payments or the like that are not part of the agreement at the time. An employment contract signed in writing is recommended, but not a mandatory requirement for an effective employment contract. Only the termination of an employment relationship must be made exclusively in writing. This is regulated in Section 623 of the Civil Code.
Agreements and promises that were made verbally during the job interview are difficult to substantiate in the event of a disagreement. Many employees in Germany do not have a written employment contract. Against this background there is the Evidence Act. The Evidence Act regulates the content of the minutes in paragraph two, paragraph one. The employer is obliged to submit a written record of all agreements made with the employee within one month. These minutes must contain at least the following points:
- Name and address of the two contracting parties
- The beginning of employment
- Place of employment
- Job description
- Amount and composition of earnings including all supplements, allowances, bonuses and special payments
- working hours
- Notice periods
- Collective agreements and works agreements.
Electronic transmission of the minutes is not permitted and the employee has the right to receive the original. The minutes are not bound by any time limit. In principle, employees have the right to request this record, regardless of the length of employment. If the employer refuses to hand over the original or to create a record, the employee has the right to request this record in court. Any changes to the employment relationship are only made in writing.
In the case of an employment relationship of less than 450 euros, it is necessary to inform the employee about the special regulations on pension insurance. There is an obligation to document whether the employee wants to make an additional payment for the pension insurance or not. The contract is effective with the oral agreement and not only with the submission of the minutes.
For trainees, the Vocational Training Act, Clause eleven, and for contract workers, the Temporary Employment Act, Clause eleven, regulate the formalities of a contract between the parties. This law gives the trainee and the temporary workers the right to record agreements in writing and to receive these minutes. In this case, the contract is effective with the oral agreement and independent of the written record.
On the other hand, the Part-Time and Fixed-Term Employment Act states in Section 14, Paragraph four, valid for fixed-term employment relationships, that an employment contract is only concluded through a written contract. To date, the employment relationship has not been effective based solely on verbal promises. For employees in collective agreements, it is necessary to check whether the agreed collective agreement requires a written employment contract for an effective employment relationship.
The written employment contract regulates the rights and obligations of the contracting parties. Against this background, basic formalities must be complied with during the conclusion. On the one hand, the employment contract describes the job and the salary. Here it is important to ensure that the employment contract keeps the job description narrowly. If this is not the case, there is a risk, if the working conditions change, that the activities will change as a result. If this is not regulated in the employment contract, the employee's consent to the change in activity is required. This is the so-called relocation clause.
The drafting of the contract defines the flexibility of the employment relationship. The employment contract is subject to the general freedom of contract. This is restricted, among other things, by laws, collective agreements or works agreements. In 2002 the form of the law of obligations changed to the benefit of employees and standardized employment contracts have since been subject to the general terms and conditions control. The aim of this legal regulation is to protect employees from inadequate and disadvantageous contractual conditions.
Special knowledge of the law and jurisprudence is required for a legally secure employment contract. Pay attention to open and inadequate wording. An employment contract must contain at least the information from the Evidence Act and the following points are recommended for an employment contract:
- Name and address of the contracting parties,
- Beginning and duration of the employment relationship, if applicable, time limits,
- Probationary period,
- Activity of the employee, transfer clause,
- Working hours,
- Overtime regulations,
- Special payments, Christmas and vacation pay, surcharges, bonuses, commissions,
- Sick pay,
- Second job,
- Company car,
- Non-competition clause
- Termination or termination.
It is advisable to adapt the employment contract to the activity and industry. It is therefore sensible to include additional points. The aspects listed above represent a minimum requirement for an employment contract.Further information on the topic:
Fixed-term employment contract: how often can it be extended?
These are the strangest clauses in the employment contract
4 ways to get out of the employment contract early
Written extension for a fixed-term employment contract
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