Employment Constituted in Spite of Formal Requirements by Acting

When a collective labor agreement exists and an employee immediately starts working without both employer and employee having signed a contract, has a labor contract been set into force? This question was decided by the LAG Schleswig-Holstein with judgment of August 07, 2018 (re: 1 Sa 23/18).

Employment Constituted in Spite of Formal Requirements by Acting

Employment Relationship or mere Temporary Employment?

The complaining employee initially worked for a company owned by a larger enterprise. The foreseeable closure of the company was well known to its employees. The plaintiff was looking for a job close to home in another company owned by that larger enterprise. The company sent him various welcome information. Among other things, the future supervisor told the plaintiff that he would start with the defendant on June 01, 2016. The plaintiff confirmed in a letter of acceptance enclosed with the welcome information that he agreed to work and to the offered pay. A written employment contract was never issued. The plaintiff took up his work with the defendant as arranged and was remunerated in accordance with the letter of acceptance. In September 2016, he and other employees were told that there was a mistake: the old employer had only lent the plaintiff and other employees to the defendant by way of temporary employment. An employment relationship with the defendant does not exist and was never intended to exist.

LAG Assumes Implicit Contract Closure

The employee's claim for being employed with the defendant was successful, in an affirmation of the ruling of the lower court. The employer had implicitly accepted the offer of closing an employment contract by integrating the employee into the company without any evidence to the contrary. Examples of possible evidence against the creation of a contract would have been a refusal to let the employee work for him. This was not the case. The salary was paid by the defendant. The defendant argued the collective wage agreement demands the written form for a contract. The LAG dismissed this argument because the collective wage agreement does not invest a written form with exclusive binding authority. Therefore, a contract of employment can become effective even without the written form.

If, inside a corporate employer, a person (future direct superior) from another company owned by the same business group offers that employee a new job at that company, and subsequently negotiates the terms of employment, and assuming the employee has no reason to assume a temporary work agreement, then a normal employment has been constituted.

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