The question often arises as to what happens if an employment contract is not concluded in writing or if the employee „simply starts“ to work. Did the employment relationship come about at all?
In principle, freedom of contract applies in Germany, which means not only that you can (within the legal limits) regulate what you want, but also how you want. In principle, an employment contract does not require a formal form, i.e. even if it is only concluded verbally or by implied action (exception: a collective agreement can regulate in individual cases that the employment contract must be concluded in writing), § 105 I 1 GewO (trade regulations).
The NachwG (proof law) stipulates that the employer must put down the main points of the concluded contract in writing within 1 month of the start of the employment relationship„“ Has. The minutes must contain the following points:
2. the start date of the employment relationship,
3. in the case of fixed-term employment relationships: the foreseeable duration of the employment relationship,
4. the place of work or, if the employee is not only supposed to work at one specific place of work, an indication that the employee can be employed at different places,
5. a brief characterization or description of the work to be performed by the employee,
6. the composition and the amount of the wages, including surcharges, allowances, premiums and special payments as well as other components of the wages and their due date,
7. the agreed working hours,
8. the duration of annual vacation leave,
9. the deadlines for terminating the employment relationship,
10. A general reference to the collective agreements, company or service agreements that apply to the employment relationship.
What happens if this information is not recorded or no employment contract has been concluded in writing? According to the NachwG, it is not punishable if the employer fails to lay down the essential conditions of the employment relationship. Failure to do so can, however, a.) lead to a reversal of the burden of proof, for example in protection against dismissal or payment proceedings by the employee against the employer or b.) the employer not fulfilling an obligation to provide evidence under other laws. Because: The NachwG pursues the goal that, especially in the event that a written employment contract does not (yet) exist, the essential points of the employment contract can be made available to all parties promptly at the beginning of the employment relationship „readable“ are defined.
Additional note: For the calculation of the period for the existence of the employment relationship (important, for example, for the calculation of the probationary period, the applicability of the law on protection against unfair dismissal, etc.), the time of the „actual and practical start“ of the employment relationship is decisive and not necessarily the day that is stated in an employment contract as the start of the employment relationship.