Federal Labour Court rules on the effectiveness of exclusion periods

According to a press release of August 24th, 2016 the German Federal Labour Court ruled on the effectiveness of exclusion periods (ref. 5 AZR 703/15). In the decided case an employee was hired as a nursing assistant of a care service. Therefore the German regulation concerning compulsory working conditions for the care sector was applicable to the employment relationship. The employment contract included a two-step exclusion period in regard of claiming the minimum wage. According to the press release the Federal Labour Court ruled, that

  • the claim for minimum wage in accordance to the German regulation concerning compulsory working conditions for the care sector is not covered by an contractual exclusion period and
  • a contractual exclusion period is invalid on the whole, because it covers claims for minimum wage by virtue of its wording.

The second part means a change of case law with tremendous consequences for the contractual design, whereas the first did not come surprisingly. After the Federal Labour Court exclusion periods are therefore only effective if they contain an explicit reference that mandatory statutory claims are not covered. This must be considered in future employment contracts as well as amendments to existing contracts.

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Olaf Strack

Labour Law And The Law Of Contract For Services
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