A forwarding agent from Leipzig earned 1,400 euros gross per month from his employer. In June 2012, his employer offered to raise his salary to 2,400 euros gross. In the corresponding supplementary agreement to the employment contract, the parties also agreed to adjust the notice period to three years to the end of the month. The notice period was to apply to both the employer and the employee.
In December 2014, disputes arose between the employee and his employer, so that the employee terminated the employment relationship "properly and in due time" - in accordance with the statutory regulation (section 622 BGB) - as of 31 January 2015.
However, the employer did not want to accept the termination and sued for a declaration that the employment relationship continued beyond 31 January 2015 and that the termination was only possible with a notice period of three years.
The Federal Labour Court finally dismissed the action and found that the employee could terminate the employment relationship on 31 January 2015.
The agreement of a three-year notice period constitutes an unreasonable disadvantage to the employee. It violates section 307 (1) sentence 1 of the German Civil Code (BGB), as the provision violates the employee's freedom of occupation guaranteed in the Basic Law. It is true that the parties had spoken of an individual agreement in the contract, which was not subject to general terms and conditions control. However, the agreement was ultimately pre-formulated by the employer, so that it must be assumed that there was no room for negotiation and that the employer wanted to link the salary increase to the extension of the notice period. Moreover, the salary increase in the present case did not outweigh the extension of the notice period by at least 30 months.
Judgement of the BAG of 26.10.2017, Ref.: 6 AZR 158/16
GoldbergUllrich Attorneys at Law 2017
Martin Wagner, LL.M.
Lawyer and Master of
Laws (Industrial Property)
Certified data protection officer (TÜV NORD)
