It is a not-so-rare phenomenon in practice: an employer and a worker have a long-standing employment relationship without a written employment contract having been written. The present article therefore looks at the question of whether and to what extent written requirements exist for employment contracts and, moreover, which substantive regulations employment contracts should generally contain.
Employment contracts, like all other civil contracts, come about through two consensual declarations of intent, namely offer and acceptance. At the conclusion of the contract, there must at least be agreement on the contracting parties, the nature of the contract and the commencement of the work owed by the employee. If no agreement has been reached on the amount of the remuneration, a customary remuneration shall be deemed agreed, § 612 para. 2 BGB.
Written form not mandatory, but recommended
Basically, employment contracts are not subject to any special formal requirements. They may come about in writing as well as verbally, by handshake or even implicitly, by mere consensual acceptance of the activity. However, an employer's often overlooked exception is the conclusion of a fixed-term contract. The limitation of an employment contract always requires the written form according to the law. If this is not observed, such a contract of employment is not ineffective, but the contract is deemed to be closed indefinitely for the protection of the employee.
In addition, collective agreements and company agreements may in particular order the written conclusion of a contract of employment. However, violations of this are mostly of a declaratory nature and do not usually lead to the ineffectiveness of the contract.
Thus, even if the effectiveness of a contract of employment does not depend on whether it has been recorded in writing or whether it is practiced on the basis of an oral agreement, the written form of the employment contract is recommended for practical reasons for good reasons.
First, since 1995, the so-called "NachwG" has obligated every employer to lay down in writing the essential terms of the contract no later than one month after the agreed start of the employment relationship, to sign the memorandum and to hand it over to the employee. Of course, this obligation can also be fulfilled by handing over a written employment contract.