Anyone who completes a trial working day in a company
and is injured during work on that day is legally insured against accidents as
a “quasi-employee”.
In the case
decided by the Federal Social Court (Bundessozialgericht – BSG) on August 20th,
2019, the prospective employee seeking work and a waste disposal company agreed
on a single trial working day in order to get to know each other. The prospective
employee rode along on the rear end of a waste truck and collected rubbish. During
the trial working day he fell off the truck and injured himself severely. The
defendant, the statutory accident insurance institution, refused to acknowledge
an accident at work for lack of integration of the prospective employee in the organisation
of the company and thus for the lack of an employment relationship. The BSG ruled
in favour of the defendant insofar: a trial working day does not yet establish
an employment relationship with statutory accident insurance coverage.
However, the BSG
also clarified that even without an employment relationship trial working can
be qualified as an insured occupation within the meaning of social security
law. According to the BSG, the prospective employee was covered by statutory
accident insurance as a “quasi-employee”, since he did not carry out
his work solely in his own interest. The prospective employee acted in the
interests of the waste disposal company by collecting waste. The waste disposal
company thus had the opportunity to get to know the prospective employee. The
trial working day therefore also had an objective economic value for the waste
disposal company.
The decision of
the BSG is particularly welcome, since the court acknowledges thereby the
probationary employment relationship (in labour law rather known as trial work
placement (Einfühlungsverhältnis)). In contrast to the employment relationship,
the probationary employment relationship does not contain any obligations to
perform services and grant remuneration. Accordingly, within the context of the
probationary employment relationship the prospective employee is not bound by
instructions and the company has no right of direction.
However, in case
the prospective employee should receive work instructions regarding time, place
and execution of the activity during the trial period and, even being
integrated into the company’s operations for a short period of time, an
employment relationship may exist despite deviating contractual regulations. In
particular, there is a risk that some of the company’s instructions (including
those that are necessary for the successful conduct of the trial working relationship)
may be seen as the exercise of the right of direction that characterises an
employment relationship.
If the
contractual relationship is to be qualified as an employment relationship due
to the contractual agreement and/or the actual execution, this usually results,
among others, in the following consequences, which are far-reaching for the
company:
- Obligation
to pay the minimum wage
- Obligation
to pay employer’s and employee’s contributions to the statutory social
insurance (with limited recourse)
- Reduction
of the probationary and waiting period according to the law on protection
against dismissal (Kündigungsschutzgesetz – KSchG) in a subsequent employment
relationship
- Restrictions
on the agreement of an unfounded fixed term for a subsequent employment
relationship
- Restrictions
on the agreement of a temporary employment without cause in case of a
subsequent employment
- Employee
representatives’ participation rights in connection with the establishment of
the contractual relationship and its termination
Considering the
jurisdiction of the German Superior Courts trial work relationships should only
be agreed in exceptional cases and only after prior careful examination.
Longer-term trial working contracts should be avoided (rule of thumb: no more
than one to three days, maximum one week).
