A freight forwarding agent in Leipzig earned a gross monthly salary of 1,400 Euros from his employer. In June 2012, his employer offered to increase his salary to 2,400 Euros gross. In the corresponding supplementary agreement to the employment contract, the parties further agreed to extend the notice period to three years, effective at the end of the month. This period was intended to apply to both the employer and the employee.
In December 2014, disputes arose between the employee and his employer, leading the employee to terminate the employment relationship 'ordinarily and in due time' – in accordance with the statutory provision (§ 622 BGB) – effective January 31, 2015.
However, the employer did not accept the termination and filed a lawsuit seeking a declaration that the employment relationship continued beyond January 31, 2015, and that termination was only permissible with a three-year notice period.
The Federal Labour Court ultimately dismissed the claim and determined that the employee was entitled to terminate the employment relationship effective January 31, 2015.
The stipulation of a three-year notice period constitutes an unreasonable disadvantage for the employee. It contravenes § 307 para. 1 sentence 1 of the German Civil Code (BGB), as this provision infringes upon the employee's freedom of occupation, which is guaranteed by the Basic Law. Although the parties had referred to the agreement as an individual agreement not subject to general terms and conditions control, the agreement was ultimately pre-formulated by the employer. Thus, it must be assumed that no room for negotiation existed and that the employer intended to link the salary increase to the extension of the notice period. Moreover, in this specific case, the salary increase does not offset the extension of the notice period by at least 30 months.
Federal Labour Court Judgment of October 26, 2017, Ref.: 6 AZR 158/16
GoldbergUllrich Law Firm 2017
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