In addition to the public law licensing regulations, employee leasing (also referred to as temporary employment) involves a number of special features that regulate the contractual relationship between the parties of the employment contract (employer/leasing party and employee/temporary worker).
The most important special feature of employee leasing in this context is the legally prescribed principle of equal treatment (Equal Pay and Equal Treatment) pursuant to § 8, Para. 1, Clause 1 of the German Law on Temporary Employment (Arbeitnehmerüberlassungsgesetz, AÜG).
Equal working conditions for temporary workers in Germany
According to this, in Germany the employer must grant the temporary worker those working conditions that apply in the business of their customer (the hiring party) during the period of temporary employment. These include
- the currently applicable working hours on site,
- the break times including the use of the break rooms and,
- in particular, the remuneration also granted to the hiring party’s permanent employees.
Frequent disputes over equal pay
In practice, this sometimes leads to disputes. Recently, the German Federal Labour Court (Bundesarbeitsgericht, BAG) had to address the question of how the employee must present his or her claim to equal pay in court and whether the claims arising from equal pay are subject to limitation periods under the employment contract.
The burden of proof lies with the temporary worker
In the opinion of the Federal Labour Court, the temporary worker is obliged to present and prove the amount of the equal pay basis. This means that the temporary worker has to explain and prove the amount of the remuneration paid in the hiring company. The temporary worker can do this either by requesting information from the hiring party pursuant to § 13 of the German Law on Temporary Employment, according to which the hiring party must provide the temporary worker with information on the remuneration of comparable permanent employees.
In addition, it is possible for the temporary worker to use the remuneration paid to a comparable permanent employee as the basis for the equal pay claim. According to the Federal Labour Court, it is not sufficient if the temporary worker refers to a general remuneration scheme without specifically stating that this scheme applies and how they are to be classified within this scheme.
Limitation periods apply
The Federal Labour Court further ruled that the claim to equal pay is subject to the general contractual limitation periods. The Court has justified this by stating that the limitation periods do not affect the content of the claim (from which may not be deviated), rather only the enforceability of the claim which has already arisen.
Advice on the drafting of German employment contracts
This decision clarifies that contractual limitation periods can and should also be included in German employment contracts with temporary workers. We will be happy to assist you in drafting the employment contracts that suitably apply to your affairs.