In companies, HR professionals in particular are confronted with employment law issues — but often without having a legal background themselves. Employment law is part of every HR professional's day-to-day business and, for example, starts with the hiring process and extends to the departure of an employee. It therefore appears all the more important to be familiar with relevant employment law issues in order to avoid conflict situations and to maintain good relations with employees and the works council. The HR manager can use knowledge of the legal pitfalls of employment law in a targeted manner and develop appropriate solutions. This makes it possible to correctly classify and evaluate issues.
The work of an HR professional should always be based on solid employment law principles, because good and effective work always has an impact on the success of a company. Companies benefit from this in many ways, just think of the time and cost savings. For successful HR work, it is a prerequisite to understand the basic principles of employment law and to attend employment law training courses regularly. In this way, legal disputes can be avoided as far as possible. This certainly includes identifying exceptional cases when additional expertise is required. Because this is the only way to request cost-reducing support in the event of a conflict. Disputes before labor courts can thus usually be avoided.
Anyone who can successfully handle personnel issues is also a reliable point of contact and problem solver for all other employees, managers and the works council in a company.
This article provides an introduction to the basics of employment law for HR professionals and shows how to acquire the desired knowledge on the topic.
Employment law for HR professionals: the basics
This section provides an overview of the foundations of German employment law: the most important laws and principles, characteristics of an employment contract and the usual employment relationships in Germany.
Individual and collective employment law
German employment law can be roughly divided into two main areas, individual and collective. The difference lies in the way companies and employees interact with each other.
that individual employment law focuses on the relationships between individual workers and their employers. This area of law regulates the formation, content and termination of employment contracts. In personnel management, it is crucial to be well versed in this area, as it forms the basis for everyday HR business.
The most important issues of individual employment law include:
- Employment contracts: What are the requirements for a legally secure contract?
- Working hours and holidays: What regulations apply to working hours, overtime, vacation entitlements and special situations such as parental leave or illness?
- Termination of employment: What are the most important regulations regarding notice periods, severance payments and the rights and obligations of both parties during the termination process?
- Protecting workers: What are the employee rights in the company, including protection against discrimination or data and occupational safety?
Collective employment law On the other hand, deals with relationships between groups of workers (usually represented by works councils and/or trade unions) and employers and their associations. This area of law is of central importance for HR professionals in companies in which trade unions or works councils are active.
The most important elements of collective employemnt law include:
- Collective bargaining: HR professionals should know how these contracts are negotiated and how they affect employment conditions such as wages and working hours.
- Works councils: Employment law expertise helps HR managers to work effectively with the works council as an elected employee representative body.
- Industrial action: Knowledge of the legal aspects of strikes and lockouts ensures the legal security of HR processes.
Both the individual and the collective sector present numerous employment law challenges that HR professionals should be aware of.
What are the most important labor laws?
German employment law is complex and, above all, spread across many sources. In addition to relevant provisions already in the Basic Law (including freedom of association, which is important for trade unions and employers' associations), numerous individual employment laws form the legal framework.
An overview of these is crucial for effective personnel management and the legal security of HR processes. And that is precisely the strength of twinwin: creating clarity in employment law.
The most important regulations include:
Civil Code (BGB)
Forms the general legal framework for employment contracts in Germany, in particular Sections 611-630.
Dismissal Protection Act (KSchG)
Regulates the conditions under which an employee can be legally dismissed. Comprehensive protection against dismissal applies in companies with more than ten employees.
Works Constitution Act (BetrVG)
Includes the basics of interaction between employer and works council.
Working Hours Act (ArbZG)
Regulates working and rest times and serves to protect workers' health and safety.
General Equal Treatment Act (AGG)
Aims to prevent discrimination based on, for example, ethnic origin, gender or religious affiliation. Since its entry into force in 2006, the AGG has significantly strengthened the protection of workers against unequal treatment.
Minimum Wage Act (MiLoG)
Set a nationwide minimum wage, which at the end of 2023 is 12 EUR per hour. He rises to 12.41 EUR on January 1, 2024 and to 12.82 EUR a year later.
Federal Vacation Act (BURLG)
Regulates the right to paid vacation: at least 24 working days (based on a 6-day week) per year.
Occupational Health and Safety Act (ArbSchG)
Outlines employers' responsibilities for the safety and health of their employees at work.
In addition, there are numerous other laws such as Part-time and Fixed-Term Employment Act (TzBfG), that Maternity Protection Act (MuSchG) and Federal Parental Allowance and Parental Leave Act (BEEG).
Each of these laws has specific effects on the practice of human resource management. Knowing them not only ensures compliance with legal regulations, but also promotes a fair and productive working environment.
Reliable information, for example on current case law, and continuous training in employment law are therefore very important for HR professionals.
What rights and obligations do employees and employers have?
In short, this is the core issue of employment law. Both aspects usually complement each other in mirror images. Which means: the duty of the employee is the right of the employer and vice versa. The aim of the legal regulations is to balance the interests of both parties.
Die Employer's main duty is to pay the remuneration agreed in the employment contract. There are also numerous secondary obligations, such as ensuring health protection at work, non-discrimination in accordance with the AGG and the protection of workers' personal data.
On the other Does the employer have the rightto instruct his employees within the framework of legal regulations (so-called management law).
The employer's rights also include terminating an employment relationship. However, the statutory (in particular Consumer Protection Act) and contractual notice periods and reasons must be complied with.
Vice versa Are employees obligatedto perform their work in accordance with the employment contract and to comply with the lawful instructions of their employer. Workers are also expected to have loyalty that includes maintaining confidentiality and avoiding conduct that could harm the employer's interests.
For a legally compliant and harmonious working relationship, it is essential that both employers and employees are aware of these rights and obligations. HR managers play a crucial role in imparting knowledge on both sides.
What is an employment contract and which components must it contain?
A formal, written employment contract primarily has the function of regulating the rights and obligations applicable to employers and employees in a specific case (regardless of whether individual or collective law).
A certain degree of standardization serves to keep these regulations in line with applicable law without having to rummage through the individual laws in each case.
An employment contract is therefore a legally binding agreement between an employer and an employee which, under German law, must contain certain essential elements. This regularly includes:
Contracting parties
Full names and addresses of employer and employee.
job description
A clear description of the job title and the tasks that the employee should perform.
Start of employment
The exact date on which the employment relationship starts.
probation
The duration and conditions of any trial period.
Length of employment
Indication of whether the contract is permanent or fixed-term, including the end date for fixed-term contracts.
working hours
Refers to the number of working hours per week or per day and should also include an overtime regulation. In other words, the conditions under which overtime can be required and how it is paid.
Compensation
The amount and structure of payment of wages and salaries, including any bonuses, allowances or commissions.
Vacation entitlement
Number of vacation days per year.
Cancellation periods
They must be complied with in order to end the employment relationship.
Place of work
Where the employee will usually work, including any home office arrangements
By the way: there is no legal obligation to write. Even though oral contracts or contracts that are digitally signed are legally binding, the extended evidence law has been in force since August 2022. This requires employees to provide employees with the main contractual provisions in writing. As a rule, the Evidence Act is complied with by an employment contract in writing.
What are the different types of employment contracts?
Employment contracts may vary depending on the terms of employment. The most common types of contractually regulated employment relationships are:
- The permanent employment contract is considered the standard form in Germany. It therefore has no fixed end date, but can be terminated in compliance with legal requirements.
- Fixed-term employment contracts relate to a specific end date or the completion of a specific task. They are used, for example, for project work or assignments as part of maternity leave.
- Contracts to minor employment offer both employees and providers a high degree of flexibility and benefits when calculating social security contributions. However, they are subject to certain earnings limits. There is a maximum of 520 EUR for so-called mini jobs, and a transition range of 520.01 to 2,000 EUR for midi jobs.
- The training contract is an agreement for the duration of vocational training. Details are regulated by the Vocational Training Act (BBiG).
- Contracts for rental or temporary work are concluded between “lender” and employee, who then works for a third company. There are strict regulations for temporary work in the Temporary Employment Act (AÜG).
It is important to know that the legally incorrect classification of an employment relationship, in particular when it comes to fixed-term employment or when working with freelancers (keyword: Fake self-employment) can quickly lead to legal problems. HR professionals should therefore obtain comprehensive information in advance.
Responsibilities of a personnel officer in employment law
After these explanations of basic knowledge in employment law, the following sections deal with practical implementation in HR management.
Advice to employees and employers on employment law issues
HR managers play a decisive role as advisors on employment law issues and form the bridge between the legal framework and daily work practice.
Your tasks in this area are varied and contribute significantly to the company's success. For example, by creating HR guidelines, conducting regular employment law training and workshops, resolving disputes and documenting all personnel-relevant information.
In this way, HR professionals protect their company against legal risks and at the same time promote a culture of compliance and respect for employment laws. In order to be able to fulfill this function, reliable information on employment law is essential.
Preparation and review of employment contracts
Employment contracts are drawn up on the basis of thorough knowledge of the relevant legal bases, current case law and any applicable collective agreements. The challenge here is to balance the requirements of employment law and corporate policy. Profound legal expertise is essential for the preparation of legally secure documents.
HR professionals often use contract models that are tailored to the various types of employment relationships (such as permanent or fixed-term) and adapt each contract to the respective position and the applicant.
Clarity and accuracy in contract language are critical to prevent misunderstandings and to ensure the accuracy of all details relating to the employee, their role and compensation.
It is important to regularly review and update these contract templates in order to adapt them to any changes in employment law and company policy. In addition, contracts for similar tasks should be consistent in content. The legally compliant templates from twinwin are very helpful in this context.[FV1]
Handling of employment law disputes, example of termination proceedings
Employment law disputes occur again and again in operational practice. And given the complexity of German employment law, dealing with them can be challenging.
The issue of terminations of employment contracts illustrates this. The regulations are complicated and the protection against dismissal under the Consumer Protection Act is comprehensive in international comparison.
First, the employer must prove a valid reason for the dismissal, which usually falls into one of the following three categories:
1. personal reasons such as long-term illnesses
2nd behavioral reasons such as breach of contract or (Subject warnings note!)
3rd operational reasons such as corporate restructuring
Terminations must be made in writing, i.e. signed by hand, in order to be legally valid.
The employer must also comply with the statutory minimum notice periods, which depend on the length of the employee's service. If the employment contract provides for a longer period of notice than required by law, the employer must take this into account (exception: termination without notice, for example in the event of gross misconduct).
In companies with a works council, this must be heard before each dismissal. And in the event of work-related layoffs, employees may be entitled to a severance payment. There are special protective provisions for certain groups, such as pregnant women, works council members and severely disabled people.
Employees also have the right to challenge their dismissal before an employment court, usually within three weeks of receipt of the notice. If the court considers the dismissal to be unjustified, it may order continued employment or severance pay.
Whether on the subject of dismissal or other employment law disputes: HR managers are well advised to always keep their legal knowledge up to date and thus be able to better deal with an escalation of conflicts.
Employment Law Continuing Education for HR Professionals
Continuing education in employment law is crucial for HR managers in Germany in order to always be up to date with the latest legislation and best practices. Here are some effective ways to further education in employment law:
- Training seminars and workshops: These formats offer the opportunity to ask specific questions and learn from experts.
- Postgraduate courses or certificate courses In employment law, personnel professionals receive particularly comprehensive training in employment law.
- Online courses and webinars As a flexible learning method, HR professionals can expand their desired knowledge anytime and anywhere.
- Technical literature: The regular study of legal texts, legal commentaries and professional journals helps to follow current developments and trends in employment law. But it is time consuming.
- Membership in professional associations: Joining professional associations such as BPM - Federal Association of Human Resources Managers or the German Society for Personnel Management e.V. — (DGFP) provides access to resources, networks, and specialized training.
In addition, exchanging experiences with colleagues, for example at industry meetings, can also provide practical insights and first-hand experience.
In any case, continuous training is essential to ensure compliance and develop effective HR strategies in line with current employment law.
The choice of the appropriate training method depends on the specific needs, time budget and resources of the individual case. A cost-effective and efficient option is the twinwin app, your digital legal department, which offers you expert support for all employment law topics.
Tips for avoiding employment law mistakes
Finally, four tried and tested practical tips to better overcome employment law challenges. Clever recruiters should:
1. regularly inform yourself about the latest employment law trends and developments
2. consult an employment law specialist in cases of doubt
3. document all employment law processes carefully and in a legally secure manner
4. always act fairly and transparently towards all employees
Conclusion: Employment law for HR professionals is complex but solvable
Employment law conflicts cannot be avoided in HR practice. In order to manage them effectively and in accordance with the law and at the same time create a positive working environment, the experienced HR manager should first strive to reach an amicable settlement.
In addition to skills in mediation, this requires solid knowledge of German employment law. That's where twinwin comes in: The “Question and Answer” module provides legally secure, concise and practical information about the legal context, possible measures and best practices.
With twinwin's numerous document templates, legally secure templates are available for various personnel documents such as employment contracts, NDAs (confidentiality agreement or non-disclosure agreement) and termination agreements.
And if external help is needed: twinwin works with partner law firms, which provide individual support for sensitive issues at attractive hourly rates.
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