Office for the Equal Treatment of EU Workers

FAQ Working conditions

Even in the probationary period, you have a right to holiday leave. If you have 24 days’ annual leave, for example, you are entitled to 2 days’ holiday per month during the probationary period. That said, your boss can prohibit you from taking leave during the probationary period. This must be stated in your employment contract, however.

Please note: If your employment is terminated during the probationary period, your employer must pay you for any days of leave you did not take.

Employers are required to pay the minimum wage even if they are not satisfied with a worker’s performance. Even if, for example, you do not meet your employer’s numerical targets (such as number of rooms cleaned or number of packages put together per hour), you are entitled to the minimum wage.

EU citizens who are temporary workers (Leiharbeitnehmende) are also entitled to full equality of treatment with national employees of the temporary work agency. The provisions of German law which apply to temporary workers, in particular the Act on Temporary Employment Businesses (Arbeitnehmerüberlassungsgesetz), apply regardless of whether a German temporary work agency employs national or foreign workers.

Tip: Ask your temporary work agency to give you the Federal Employment Agency’s information sheet for temporary workers and a document setting out the main working conditions in your native language. The agency is required to give you this.

Further information on the supply of temporary workers is also available on the Federal Employment Agency’s website.

German collective agreements (Tarifverträge) regulate workers’ conditions of employment, such as pay levels, minimum holiday entitlements, etc. The arrangements set out in collective agreements are usually more favourable for workers than the statutory regulations. For example, collective agreements can stipulate that workers are entitled to more days of holiday leave and a higher minimum wage.

The provisions of a domestic collective agreement apply to all workers who are members of the trade union, if the employer is bound by a collective agreement negotiated by a trade union. If you are not a member of the trade union, a collective agreement only applies to you if your employment contract states that

  • a specific collective agreement is applicable, or
  • your employment relationship falls within the scope of a generally binding collective agreement.

Tip: You can demand that your employer include such an agreement in your employment contract, if colleagues who are national workers have it in theirs.

The size of an organisation’s workforce is determined by calculating the proportion of a full-time post held by each employee, based on the number of hours they work per week:

  • Part-time employees who routinely work 20 hours or less per week are counted as having 50% of a full-time post.
  • Employees who work 30 hours or less for the company per week are counted as having 75% of a full-time post.
  • Apprentices are not counted as part of the workforce for the purposes of the Unfair Dismissal Protection Act (Kündigungsschutzgesetz).

Example: An organisation has 6 members of staff working 39 hours per week (6), 2 members of staff working 32 hours per week (2×0.75), 1 member of staff working 15 hours per week (0.5) and 2 apprentices working 20 hours per week (0). The organisation thus has a workforce of 8 (6+1.5+0.5), meaning that the Unfair Dismissal Protection Act does not apply.

Compliance with the minimum wage is monitored by the unit within the Customs Administration (Zollverwaltung) which is responsible for enforcing the law on illegal employment and benefit fraud. It also monitors sector-specific working conditions under the Posted Workers Act (Arbeitnehmer-Entsendegesetz). Audits are carried out on-site – without advance notice being given. The Customs Administration unit has the power to examine records, interview individuals (employers, customers, workers) and enter business premises. In certain sectors, and in the case of marginal employment (known as “mini-jobs”), employers who are obliged to pay the minimum wage under the Minimum Wage Act (Mindestlohngesetz) are required to record, within seven days, the time at which the employee started and finished work and the length of the daily working time. During an audit, the employer must also be able to produce employment contracts, payroll records and payment orders. All records must be retained in Germany for at least two years. Further details are provided on the Customs Administration’s website.

If, in a specific sector, a wage of 18 euros is customary under a collective agreement and you only receive the minimum wage of 9 euros, your pay can, in certain circumstances, be considered unethically low. An unethically low wage (sittenwidrige Entlohnung) is one which is less than two-thirds of the customary wage under a collective agreement. A guide to the customary wage under collective agreements for different sectors and occupations can be found here. In the above example, you ought to be earning at least 12 euros if the customary wage under a collective agreement is 18 euros. However, it is necessary to demonstrate that your employer is paying you less than the others deliberately and without justification. If you are not sure whether your pay is unethically low or not, consult an advice centre near you.

Yes, this is allowed. In this case, if your employment is to be continued, the employer must conclude a new employment contract with you after the agreed probationary period. Otherwise, your employment ends when the probationary period expires.

The works council (Betriebsrat) can contest a dismissal by notice (ordentliche Kündigung) within one week and a dismissal without notice (fristlose Kündigung) within 3 days if:

  • the dismissed employee can be employed in a different position within the organisation or company
  • the employer has not adequately considered social criteria in the selection process, in the case of a dismissal for operational reasons,
  • the dismissal runs counter to the guidelines agreed with the works council,
  • it is possible for the employee to continue to be employed following reasonable retraining or further training programmes, or with different contractual conditions, provided that the dismissed employee agrees to this.

Every hour in which you place yourself at your employer’s disposal counts as working time. This includes periods when you are waiting for work materials, for guests to check out of a hotel, for a van to be loaded or unloaded, etc. On-call service in the care sector, i.e. the time you spend on standby in the immediate vicinity of elderly and ill people, also counts as working time.

Employers who do not meet their obligation to provide the minimum working conditions required under the Minimum Wage Act (Mindestlohngesetz) or the Posted Workers Act (Arbeitnehmer-Entsendegesetz) can face a fine of up to 500,000 euros. Breaches of the obligation to cooperate with audits (e.g. a refusal to provide information or to produce records) or a violation of the requirement to keep working time records can result in a fine of up to 30,000 euros. An employer who has been fined at least 2500 euros for an administrative offence under the Minimum Wage Act or the Posted Workers Act can also be banned from being awarded public contracts. Unethically low wages (sittenwidrige Entlohnung) can constitute a criminal offence of “wage usury” (Lohnwucher) under Section 291 of the Criminal Code (Strafgesetzbuch).

An offer of unpaid trial employment is probably untrustworthy if

  • you receive a trial employment invitation before you have even attended a first interview;
  • the trial employment is to last longer than five days;
  • no one explains the work procedures to you and there is no one you can ask questions;
  • you do not receive a trial employment contract when you request one;
  • the employer gives you specific instructions on what is to be done and sets a deadline for carrying them out, or if you have to keep to specific working hours or go to specific work locations.

Trial employment is merely intended to give you an insight into the company and let you gain some initial experience of the work involved. As soon as you are required to comply with break times or follow exact instructions given by the employer, an employment relationship can be said to exist.

Do you have the feeling that your work is producing added value for the employer at all times and that you are actually not receiving any further support from the employer? Or are you being treated like the other employees and carrying out comparable activities at all times?

  • If this is the case, you can sue the employer for payment of wages.

    Please note: If you want to sue the employer for payment of wages, you normally have to provide evidence in court that an employment relationship has existed.
    If the court accepts that an employment relationship exists, the employer must pay you wages. If the employer wishes to terminate your employment, the statutory notice period applies (4 weeks to the 15th or the end of a calendar month).

  • You can draw the employer’s attention to the legal situation and ask to be formally employed. If the employer does not agree to do so, you should not extend the trial employment period.

The principle of equal treatment under labour law prohibits employers from treating individual employees or groups of employees less favourably than other employees in similar circumstances. Exceptions are only permitted if the employer has an “objective reason” for the difference in treatment. For example: if an employer wants to reward loyalty to the organisation by paying a Christmas bonus, payment can be made dependent on length of service. This means that employees only receive this bonus after 5 years of service. In this scenario, if an individual were to receive the bonus after just one year’s service, this would violate the principle of equal treatment under labour law, meaning that all employees would be able to lodge a claim for the bonus.

Exceptions exist in the following cases, for example:

  • if a “skeleton staff” of sorts temporarily has to work for longer because otherwise outcomes would not be achieved or disproportionate damage would result for the company,
  • in the case of research and teaching,
  • if preparatory work and closing operations cannot be delayed,
  • if people require treatment, care or assistance and this work cannot be delayed,
  • if animals require treatment or care and this work cannot be delayed.

Workers are protected from unfair dismissal by legislation (the Unfair Dismissal Protection Act (Kündigungsschutzgesetz)). In unfair dismissal proceedings before a court, the employer must provide evidence that a dismissal is warranted in social terms. The dismissal can be warranted in social terms on the following grounds:

1. Grounds relating to the person, for example:

  • a sudden and extreme decline in the employee’s performance,
  • the employee is no longer physically or mentally capable of carrying out the work,
  • the employee is absent due to long-term illness or very frequent short periods of illness and his or her incapacity for work places a particular burden on the organisation.

2. Grounds relating to the employee’s conduct, for example:

  • a refusal to work, constantly arriving late, pretending to be ill,
  • fraudulent expenses claims, insults or violence in the workplace,
  • theft and embezzlement in the organisation.

Please note: If you are dismissed on grounds of conduct, the dismissal is only valid if the employer has previously warned you about the misconduct which forms the grounds for the dismissal. The warning must always include a statement that repetition will result in dismissal.

3. Grounds relating to operational changes which justify a reduction in personnel or jobs, for example:

  • a decline in orders,
  • changes to production methods,
  • partial or complete closure of the organisation.

Please note: In the case of a dismissal for operational reasons, if there are several employees who could be considered for dismissal, the employer must apply “social criteria” in the selection process. When deciding who has to leave the organisation, priority is given to keeping on employees who
• have been employed the longest by the organisation,
• are older,
• have dependants,
• have a severe disability.
Irrespective of this, the employer can retain those employees who are essential to the organisation due to their special skills and capabilities. If you are affected by a dismissal for operational reasons, you can demand that the employer disclose the reasons for the selection.

In this case, you can take your holiday leave the following year, within 15 months.

Example: You were unable to use your 2014 holiday entitlement due to an illness in 2014. In this case, you must take your 2014 leave by 31 March 2016. Any days of leave from 2014 which you have not taken by 31 March 2016 will lapse.

Employment may only be terminated without notice if either the employee or the employer cannot reasonably be expected to continue the employment relationship. The trust between the employee and employer must be so badly damaged that a notice period is not an option.

Examples of grounds on the employer’s side:

  • The employee persistently refuses to carry out work, is constantly late, or fakes an inability to work
  • The employee reveals trade secrets, or persistently violates occupational safety and health provisions or other secondary obligations.
  • The employee insults his or her colleagues or supervisors in the workplace.
  • The employee commits criminal offences or is suspected of having committed a crime.

Examples of grounds on the employee’s side:

  • The employer fails to pay or underpays the employee for a significant period.
  • The employer endangers the employee’s life or health.
  • The employer commits criminal offences against the employee.

In almost all cases, employment can only be terminated without notice if a warning has been given – including by the employee to the employer – without this having resolved the situation. This means that the person concerned must previously have had their attention drawn to their misconduct. However, in certain special cases, for example if a criminal offence has been committed, no warning is required.

In organisations with a works council (Betriebsrat), the works council must be notified of every dismissal by the employer. In certain cases, the works council can contest the dismissal.

Employers are not permitted to dismiss the following people at all, or are required to obtain approval from a public authority prior to their dismissal:

  • Pregnant women,
  • People on parental leave,
  • People with a severe disability,
  • People who are providing care for a family member,
  • Members of the works council (Betriebsrat) and the apprentices’ representative committee (Auszubildendenvertretung).