Sometimes it is difficult to distinguish an employment contact from an agreement to carry out work. However, the legal consequences are very different.
Characteristics of an employment contract
The employee carries out the work himself.
The employer pays the employee a salary for the work that is carried out.
There is a hierarchical relationship between the employer and the employee.
The employment contact is legally concluded with an offer which is accepted. This agreement does not necessarily have to be drawn up in writing. A signed contract is not necessary. As soon as parties have reached a verbal agreement, they are bound by it. In addition, the employment contract can also be concluded tacitly when one party carries out paid work in the service of another party.
Obviously it is sensible to confirm the agreement in writing in an employment contract. This prevents arguments about the exact conditions at a later stage. In some cases the employer is obliged to do so because of the applicable collective employment agreement. In addition, some clauses always have to be drawn up in writing. For example, a non-competition clause or a clause about a trial period is only valid if it has been drawn up in writing.
There are some things which the employer must always confirm to the employee in writing as soon as there is an employment relationship, for example, the name and place of residence of the employer and the employee, the place where the work is to be carried out, the position of the employee, the start date of the employment, whether an open ended contract has been agreed upon, or, in case of a fixed term contract the duration of the employment, the applicable notice period and the applicable collective employment agreement.
Employers and employees should always take a critical look at the content of the employment contract. The conditions which are included in an employment contract are not always binding. For example, some employment conditions can be superseded by peremptory rules arising from the law or from the applicable collective employment agreement.
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