New evidence law and further changes in the law by the working conditions directive
Due to the implementation of the EU Directive 2019/1152 via transparent and foreseeable working conditions (EU working conditions directive), the German legislature must also change the proof law (NachwG), in which anchoring the information and documentation obligations of the employer [1] must be anchored. On June 23, 2022, the Bundestag passed innovations in the Evidence Act, which will come into force on August 1, 2022. This loses its shadow existence. This only applies to inventory relationships if the employee requires his corresponding documentation.
I. New evidence law from August 1, 2022 - the end of serenity
We have summarized the essential changes below for you.
1. Previous proof of evidence of the employer and legal consequences in the interpretation trap
in its expiring version, the proof law already provided for some of the employer's proof of evidence, which were not present in labor law practice. Among other things, the employer has so far been obliged to record the essential contractual terms in writing at the latest one month after the agreed start of the employment relationship, to sign the minutes and to hand it over to the employee. Among other things, this included points that can be found in written employment contracts by default, such as
The name and address of the contracting parties,
The beginning of the employment relationship,
In the case of temporary employment relationships, the predictable duration of the employment relationship,
Place of work and time,
a brief characterization or description of the activity as well
Composition and amount of the work fee,
Vacation time and
The notice period.
In addition, special evidence obligations in the employee's mission abroad were already valid. Before departure of the employee, he also had to
The duration of the activity to be carried out abroad,
The currency in which the wages are paid out,
Additional wages and benefits in kind with the stay abroad.
the conditions of his return are communicated in writing.
If the employer did not comply with his obligations from the proof law, the employee was able to (only) assert claim He was able to request the employer to request a record of the essential contractual terms corresponding to the requirements of the Evidence Act. In theory, the employee was able to assert a claim for damages if he had a financial damage, precisely because of the employer's violation of his obligations from the proof law. In practice, however, this claim had almost no meaning.
2. Evidence obligations based on the working conditions guideline
In addition to the evidence obligations that have already been applicable so far on the essential working conditions, the catalog is now expanding with the following points:
In the case of temporary employment relationships , the end date of the time limit or the predictable duration of the employment relationship must be specified.
In the event of an agreed mobile work, the employment contract must be included in the employment contract that the employee can freely choose his place of work.
In the event of a trial period , the length of the shortened notice period must be stated.
Furthermore, the composition and amount of the work fee including the remuneration of overtime, the surcharges, allowances, premiums and special payments as well as other components of the work wage in the minutes must be specified.
The remuneration components are to be specified separately with reference to their due date and the type of payment.
In addition to the agreed working hours, the minutes must also have agreed breaks and rest periods as well as the layer system (e.g. three-shift system), the shift rhythm (e.g. weekly change of early, late and night shift) and the conditions for changes in shift.
When working on call (§ 12 TzBfG), the employer must inform the employees about how their working hours are determined. In doing so, he has at least notifying (i) that the work performance is to be provided according to the work of work (II) the time window, determined by reference days and reference hours, which is set for the provision of the work performance and outside of which the employer is not allowed to request work, as well as (III) the minimum recruitment period for work. In addition, the employer (IV) has to inform about the number of hours to be removed.
In the event of the agreed arrangement of overtime, this must be stated stating the required requirements.
inform further training he This applies even if the claim arises from a collective agreement or from the law.
In the event of a company pension scheme via an external pension provider, the name and address of this supply carrier must be specified. There is no obligation to provide evidence if the pension provider is already obliged to this information (such as for pension funds, pension funds and life insurance companies in accordance with Sections 234k ff. Of the Insurance Supervision Act in conjunction with the VAG information obligation).
The employer must inform the employee about the procedure to be met termination He must point out that the employee, if he is canceled, must comply with the three -week deadline for receiving a protection against dismissal in accordance with Section 4 KSchG.
In order to mitigate this obligation to notify, however, the legislator makes it clear in the justification of the law that a wrong or no point of reference to the period of the lawsuit does not lead to the ineffectiveness of a termination. The preclude effect of § 7 KSchG also applies to failure or incorrect evidence, so that the employee has to observe the 3-week period for the collection of a dismissal protection lawsuit to avoid legal disadvantages.
The employer must indicate the written form requirement in accordance with Section 623 of the German Civil Code and the legal, collective bargaining or individual contractual notice periods . Is contractually staggering the length of the notice periods e.g. For example, according to the justification, the statement is sufficient to provide the agreed calculation modalities.
So far, it is unclear whether employers will be obliged to justify dismissals in the future. According to Art. 18 Para. 2 Clause 1 of the Directive, employees should be able to request that the employer to provide sufficiently precisely designated reasons for the termination. Currently, a message about the reasons for termination or social selection in the event of operational termination is only planned in exceptional cases. The draft law has so far not proven any regulations in this regard. However, if the employee expresses such a desire in the future, employers would have to consider a written justification with a view to the guideline.
3. The period and form for the presentation of the minutes on the basis of the working conditions directive
Although the European directive on transparent and predictable working conditions in the European Union expressly enables the working conditions in electronic form and made available to the employee, no use is made in the evidence law.
It remains that the essential working conditions according to the proof law must be given in writing . In the future, employers must continue to hold the working conditions on paper, sign it handwritten and hand over the document to the employee. It is not sufficient to provide the employee the signed conditions as a scan or to only sign them digitally. However, it does not legally follow that the employment contract is only effective if it is concluded in writing, ie was signed by both sides. Rather, the employer can also fulfill his obligations to evidence by one -sided written information in paper form against the employee. In practice, nothing will change in handing over a written employment contract.
The previous deadline for the drafting of the essential working conditions of one month after the activity was taken up is now significantly shortened.
Already on the first day of the work performance, the information on the name and address of the contracting parties, composition and amount of the work fee as well as agreed working hours must be written.
At the latest seven days after the start of work , the beginning of the employment relationship, the duration of the trial period and that of the agreed time limit as well as place of work, service description and the overtime arrangement must be recorded.
monthly period remains for the other conditions .
If the essential contractual terms change in the existing employment relationship , they must be communicated to the employee on the day on which they become effective.
4.
The new evidence obligations apply to all employment contracts that are concluded from the entry into force of the working conditions directive. According to the current status, this should come into force August 1, 2022
The new evidence obligations only apply to inventory relationships if the employee requires of the corresponding working conditions . In this case, the transcript can generally be handed over within seven days .
In the event of contract changes, the new contractual terms must be communicated to the employee at the latest on the day on which they will be effective.
5. Special teaching obligations in the event of postings
In the event of posting an employee abroad, the employer's proof of evidence will also be expanded. The teaching obligations are provided that the employee has to provide his work performance abroad for more than four consecutive weeks If the employee has to provide successive work orders in different countries, the information regarding all work orders can be summarized in accordance with the justification of the law. In the future, employees will be over in these cases
the country or the countries in which work abroad is to be done, and
The planned duration of the work,
The currency in which the remuneration takes place,
if agreed with the stay or benefits in kind with the stay abroad, in particular posting allowances and travel, catering and accommodation costs to be reimbursed,
the statement of whether a return of the employee is provided, and
If necessary, the conditions of the return.
to teach.
If the posting falls into the scope of the employee's recipient law, the employee must also be informed about the remuneration, which he can claim in the intended law in the recording state. Furthermore, the employee has a link to the official national website of the recording state according to the internal market information system (IMI).
6. Consequences in the event of violations
A resulting innovation in the proof law is now regulated in the new § 4: A violation of the employer of his obligations from the proof law will be an administrative offense in .
not at all,
not right,
In the wrong form,
incomplete or
does not comply in time.
Especially with a view to the newly introduced sanctions, it is advisable to observe the shortest of the above -mentioned deadlines for the proof of the essential working conditions and hand over the essential working conditions to the employee at the latest on the first day of the work.
As before, however, it remains that the proof obligations are not constitutive and that a violation of the proof of evidence does not affect the effectiveness of the employment relationship as such.
If employers only sign their employment contracts via Docusign , this does not meet the requirement of personal signature and will probably be an administrative offense in the future.
II. Part-time and temporary law
The part-time and temporary law (TZBFG) is also adapted:
A trial period agreed in a temporary employment relationship must now be in an appropriate relationship to the duration of the temporary employment relationship and the type of activity.
This is expected to be particularly affected by short limits, in which a previously permitted trial period of six months may no longer be permitted in the future. Instead, this will only be a few weeks or months.
If a temporary employee has been working for the employer for more than six months, he can report the request to justify an indefinite employment relationship . The employer is then obliged to give justified (back) answer The legislator also leaves open the content and scope of the reasoned answer.
III. Trade regulations
The trade regulations (GewO) is also adapted:
According to § 111 GewO, employees may not be imposed on the costs of further training if the employer is obliged to offer further training through or on the basis of a law, through a collective agreement or company agreement. Such training courses should take place during working hours. If you have to be carried out outside of working hours, you are considered working hours.
IV. Recommendations for action
We encourage you to update your contract pattern based on the above. It is also to be considered to train the employees in the HR department more intensively in this area. In addition, due to the increased documentation requirements, you should adapt to a significantly increasing administrative additional effort.
The good thing is: we are there for you. Talk to us!
[1] For reasons of better readability, the male form is used for personal names and personal words. Corresponding terms generally apply to all genders within the meaning of equal treatment. The shortened language form has only editorial reasons and does not include a rating.
