The Agreement Of A Contractual Penalty In The Employment Contract

So, you can prevent the employer breaches of duty of the staff. Employers have the ability to effectively protect against breach (for example, violations of the obligation of secrecy or a non-compete) on the part of its employees. The agreement of a contractual penalty in the employment contract is the appropriate legal instrument. However, some points should be observed here to ensure the effectiveness of such an agreement. The penalty represents a so-called unselbststandiges punishment promise regularly, that is, a promise of performance, which is under the suspensive condition of the non-fulfilment or improper fulfilment of obligations to the debtor (workers), cf. sections 339 et seq. BGB.

The purpose of the penalty is a, that it holds the debtor for the proper provision of the promised performance as a bargaining chip. On the other hand it opens up the possibility of a facilitated the creditor (employers) in case of infringement Disclaimer of liability. Detection of concrete damage, which is often not possible for the employer, is expendable. Penalties must be agreed separately and come to all employment contracts into account. Trainees are an exception, here no contractual penalties may be agreed pursuant to 12 para 2 vocational training Act (BBiG). Contractual penalties in boilerplate contracts are agreed, they are subject to including all terms and conditions of control of 305 et seq.

BGB. You need to clear and understandable formulated and should be positioned not hidden somewhere. Further the agreed contractual penalty not only the penalty payable, but also the initial breach of duty so determined must that the promising in his behavior that can be. Here, the Federal Labor Court applying a very strict standard. “Clauses such as culpable contrary behaviour of the employee” or in the case of a serious breach of contract “appreciated the BAG as too vague. To to be reasonable within the meaning of 307 para 1 BGB, the employer must have a legitimate interest in the penalty. Regular is one but in the desired protection against breach. Usually, but not necessarily, the agreed contractual penalty in a money is. These must be reasonable in amount. This is not the case, the penalty is eliminated completely. A validity-preserving reduction does not occur during form employment contract. The penalty has been agreed upon, however, individual, a disproportionately large penalty (in the judicial proceedings on petition or objection of the employer) pursuant to section 343, paragraph 1, sentence 1 may be reduced BGB to a reasonable amount. Further interest in news and information related to labour law, visit the blog of the author.