Documenting the terms of employment: fifteen items, three deadlines

A plumbing firm hires a fitter on a handshake, pays her €3,200 gross every month on time and considers the hiring done. During an inspection there is no written record of her working conditions at all. The employment is valid all the same, but the omission is an administrative offence for which the statute provides a fine of up to €2,000.

What the Evidence Act requires, and what it does not

In Germany an employment contract is, as a rule, concluded without any particular form. Two people who agree on the job, the start date and the pay, and who then begin working, have created an employment relationship without a single sheet of paper. The Evidence Act changes nothing about that; it only comes in afterwards.

Under section 2(1) NachwG the employer must set down the essential terms of the contract in writing, sign that record and hand it to the employee. That is three acts: write it down, sign it, deliver it. If any one of them is missing, the duty has not been met.

The duty rests on the employer alone. The employee does not have to sign anything for it to be fulfilled, and cannot validly waive the record either. The document informs the employee; it is not an agreement reached with them.

The statute does not make the contract void when the record is missing. The fitter from the opening is validly employed, with all the rights that go with it. The consequences lie elsewhere: in a fine, and in a weaker position on evidence as soon as pay, hours or holiday become disputed.

On evidence, a simple consideration applies. An employer who never issued a record will find it hard to prove later what was agreed. Any uncertainty then often counts against them, because the duty to create clarity was theirs and they did not discharge it.

Fifteen minimum items

Sentence 7 of subsection 1 lists what must at least appear in the record. The list has fifteen numbers, and several of them contain more than one item. The table shows them in short form, together with the deadline by which each item has to be handed over at the latest.

Number 7 asks for more than a monthly figure. Overtime pay, premiums, allowances, bonuses and one-off payments each have to be stated separately, together with when they fall due and how they are paid. A line such as pay as agreed does not meet the requirement.

Number 8 covers more than weekly hours. The agreed rest breaks and rest periods belong in it too, and anyone who agrees shift work must describe the system, the rhythm and the conditions for changing shifts. The third module shows which statutory limits sit behind these items.

Number 14 is the trickiest. It requires the procedure for dismissal, at least the written-form requirement, the notice periods and the deadline for bringing an unfair dismissal claim. Many older contract templates say nothing at all about that deadline.

The statute softens the consequence of a mistake here itself. Under the last half-sentence of number 14, the claim deadline of the Protection against Dismissal Act applies even where it was not properly documented. A missing reference therefore does not extend the deadline, but it can still be fined.

Some numbers only apply when their situation exists. Number 3 only for a fixed term, numbers 6 and 10 only where something was agreed, number 9 only for on-call work and number 13 only where a pension is promised through an external provider.

Three deadlines, counted from two different points in time

Sentence 9 spreads the items across three dates. Names and addresses, pay and working time must be available on the first day of work at the latest. Without them the employee cannot even check whether the first payslip is right.

Numbers 2 to 6, 9 and 10 must be handed over by the seventh calendar day after the agreed start of employment. All remaining items, meaning numbers 11 to 15, must follow no later than one month after the agreed start.

The two reference points are not the same. The first deadline depends on the actual first day of work, the other two on the agreed start. When both coincide, nobody notices; when work begins later than agreed, the later deadlines are already running regardless.

In practice the staggering is a relief hardly anyone needs. An employer who uses a written contract anyway hands over every item on the day it is signed and never has to think about three dates. The deadlines are the outer limit, not the recommendation.

Paper, text form, or both

The basic form of the record is written form: a paper bearing the employer's own handwritten signature. Sentence 8 expressly excludes the electronic form. Even a qualified electronic signature therefore does not satisfy the duty under sentence 1.

Sentence 2 opens a second route alongside it. The record may be drawn up in text form and sent electronically, for instance as a PDF by email. The statute ties this route to conditions, however, and all of them must be met at once.

• the document is accessible to the employee
• it can be saved and printed
• when sending it, the employer asks the employee to confirm receipt

The third condition is the one most often forgotten. An email with an attachment is not enough unless it also asks for an acknowledgement of receipt. Anyone using this route should put the request into the body of the message and file the reply.

Text form is not the last word either. If the employee asks for a paper record, the employer must provide it without undue delay, stating from when the terms apply. Limitation of that claim only begins at the end of the year in which the employment ends.

For certain sectors the electronic route is closed entirely. Sentence 6 excludes employees working in one of the sectors listed in section 2a(1) of the Act to Combat Undeclared Work. They include construction, hospitality and accommodation, and building cleaning, among others.

Also listed are passenger transport, freight forwarding and logistics including platform-based delivery services, fairground businesses, trade-fair construction, the meat industry, security services, and hairdressing and cosmetics. In these businesses only a signed paper will do.

The contract as evidence, references and changes

A separate record is unnecessary if the employee has received a written employment contract containing every required item. That is what section 2(5) provides. If one item is missing from the contract, only that item has to be supplied, not the whole document.

Subsection 5 allows the same for a contract in text form sent under the conditions of subsection 1 sentence 2. The employee's right to demand a paper version is unaffected, and in the sectors covered by sentence 6 this relief does not apply.

Subsection 4 saves paperwork in another way. The items in numbers 6 to 8 and 10 to 14 may be replaced by a reference to the applicable collective or works agreement. For holiday and dismissal, where the statute governs, even a reference to the statutory rule is enough.

Contracts change, and section 3 carries the record along. A change to the essential terms must be notified to the employee in writing on the day it takes effect at the latest. A pay rise from the first of the month must therefore be in writing on that very day.

Changes to the applicable statutes, collective agreements and works agreements themselves are exempt. An employer who referred to the collective agreement need not notify each new pay table separately. And a written amendment agreement replaces the notice, just as the contract replaces the record.

Special cases: internships and work abroad

For interns, subsection 1a sets a stricter deadline. The record must be prepared without undue delay after the internship agreement is concluded, and in any case before the intern starts. The ladder of first day, seventh day and one month does not exist here.

The content is tailored to the internship: learning and training goals, start and duration, daily hours, whether and how much the intern is paid, holiday, and a reference to any applicable collective or works agreements. The electronic form is excluded here as well.

Subsection 2 concerns employees who are to work outside Germany for more than four consecutive weeks. They must receive the full record before departure, supplemented by the country of work, the planned duration, the currency of pay, any agreed foreign allowances and the conditions of return.

Agreeing a probationary period

A probationary period does not arise by itself. Number 6 speaks of its length if agreed: it is an arrangement, and where none was made, there is no probation. The employment is then an ordinary one from the first day.

Its main significance lies in the shorter notice period in section 622(3) of the Civil Code, which applies for six months at most. How that notice is calculated and which end dates it allows is covered in the course on notice periods, holiday and sick pay.

For fixed-term contracts, section 15(3) of the Part-Time and Fixed-Term Employment Act adds a further limit. An agreed probation must be proportionate to the expected length of the fixed term and to the nature of the work. Six months of probation in a seven-month contract hardly meets that test.

The provision names no figure, and that is deliberate. What matters is how long an employer reasonably needs to judge suitability for exactly this job. For simple temporary work that is shorter than for a skilled position with a training phase.

And a probationary period does not by itself make a fixed-term contract terminable with notice. Another subsection of the same section deals with that, and the second module shows why a fixed-term contract without an express notice clause binds both sides until it ends.

What a failure costs

Section 4 NachwG turns the duty into one backed by fines. An offence is committed by anyone who hands over an essential term not at all, incorrectly, incompletely, not in the prescribed manner or late. Each of those five variants is enough on its own.

The same catalogue applies to the paper version the employee demands, to the record due before a posting abroad and to the notice of a change under section 3. In each case the fine can reach two thousand euros.

Incorrectly is a risk of its own. An employer who issues a record showing the wrong pay or the wrong hours has not met the duty, even if the paper was handed over on time. The record has to reflect the contract as it is actually lived.

For a small business all of this fits into a routine. One contract template covering all fifteen numbers, signed before the first working day, and for every later change a short written addendum handed over on the day the change takes effect.

Businesses in one of the sectors named by the Act to Combat Undeclared Work drop every electronic shortcut from that routine. Everyone else may use text form, provided they ask for the acknowledgement of receipt and supply paper as soon as it is requested.