Unfortunately, the situation is not uncommon, a surprising interview takes place, the employee is called into a room where the employer is with a witness, and the employee is accused of criminal behavior and given the choice of either the employment contract by mutual agreement to be dissolved immediately, or to be given notice of termination (without notice). If the employee signs in such a pressure situation, the question arises as to how long he can take to think about this signature and take action against the termination agreement.
What is the legal situation and what can you do
An employment relationship is terminated by the termination agreement. This termination can only take place through a unilateral termination or, as here, through a bilateral agreement. It is therefore necessary to get rid of this agreement „“. Legally, this is done by contesting the agreement. A challenge is admissible if the employee has made a mistake in signing the true facts (because the employer may have misrepresented or incompletely stated them), or was deceived or maliciously threatened by the employer (by the employer knowingly believing the employee). , there would be a sensitive evil in the form of dismissal if he does not agree to the cancellation). The contestation is regulated by law in §§ 119 ff BGB.
Prerequisites for a challenge according to case law
The Cologne Higher Labor Court has in its Decision of October 19, 2016 on 11 Sa 114/16 now defines the criteria to be met:
The appeal must be made within 1 year, § 124 I BGB.
The appeal period begins a. at the point in time at which the deception is discovered, in the case of a threat to end the predicament, at the latest within 10 years of the declaration of intent, §§ 124 II, III BGB.
The employer must have fraudulently deceived or unlawfully threatened the employee, § 123 BGB, which is specified as follows in relation to labor law:
- If the employer has to assume that a dismissal would very probably not be effective, then he must not hold out the prospect of it being effective and build up a pressure situation (cf. also Federal Labor Court of November 28, 2007 – 6 AZR 1108/06 –).
- If the employer only has the suspicion that the employee has seriously violated the employment contract (e.g. by committing a criminal offence), then the suspicion must already be so well established that the event (which is why the employer has the suspicion) cannot also have occurred in another way and way could have happened. Mere assumptions are not sufficient (cf. also Federal Labor Court of February 12, 2015 – 6 AZR 845/13 – and Federal Labor Court of May 24, 2012 – 2 AZR 206/11 –).
- If the employer did not know / did not want to know about special reasons that would entitle him to termination / no further employment (e.g. the omission of the material reason for the representation, § 14 Para. 1 Sentence 2 No. 3 TzBfG) against better knowledge (e.g. if the already informed the represented employee that he is not coming back and that another „representation“ is therefore necessary) and thereby gives the employer the impression that he „has no chance anyway“ and it is better to sign a termination agreement (cf. Federal Labor Court of April 29, 2015 – 7 AZR 310/13 –).
Important to note
All decisions are made on a case-by-case basis. It is therefore important that you can determine and then present the facts that are to be evaluated. It is the employee's burden to prove that he was deceived. In the first step, the employee must therefore be able to state what the trigger for his signature was, ie what concrete disadvantages the employer promised him. This is not easy in many cases, so you should definitely seek professional advice.
