{"id":6073,"date":"2022-03-12T16:54:32","date_gmt":"2022-03-12T15:54:32","guid":{"rendered":"https:\/\/smart-arbeitsrecht.de\/?p=6073"},"modified":"2024-05-10T11:45:52","modified_gmt":"2024-05-10T09:45:52","slug":"gebot-fairen-verhandelns-beim-aufhebungsvertrag-wann-ist-es-verletzt","status":"publish","type":"post","link":"https:\/\/smart-arbeitsrecht.de\/en\/gebot-fairen-verhandelns-beim-aufhebungsvertrag-wann-ist-es-verletzt\/","title":{"rendered":"The principle of fair negotiation in termination agreements \u2013 when is it violated?"},"content":{"rendered":"
\n
\"Gebot<\/figure><\/div>\n\n\n

If you, as an employee, have signed a termination agreement, it is not easy to withdraw from it. This is once again illustrated by another decision of the Federal Labor Court on the "The requirement of fair negotiation<\/strong>\u201c in the termination agreement. <\/p>\n\n\n\n

The court found that this principle had not been violated in the case at hand, even though the underlying conditions were not entirely "fair." At least from a lay perspective. However, strict legal standards must be applied to a violation of the principle of fair negotiations.<\/p>\n\n\n\n

\n
\n

Have you received a termination agreement? Let us advise you without obligation.<\/p>How we support you with your termination agreement<\/a>\n <\/div>\n<\/div>\n\n\n\n

Employer appears with lawyer and termination agreement<\/h2>\n\n\n\n

The Federal Labor Court\u2019s decision on the requirement of fair negotiations was based on the following case:<\/p>\n\n\n\n

At the end of 2019, the company's managing director summoned a sales team coordinator from the building services department to his office. He confronted her with the accusation that she had Unjustified purchase prices changed in the computer system<\/strong>to create the illusion of higher sales profit.<\/p>\n\n\n\n

During the interview, the employee was not only confronted by the company\u2019s managing director. lawyer<\/strong> for labor law<\/a> was also present \u2013 presumably to give legal weight to the employer\u2019s demands.<\/p>\n\n\n\n

The managing director presented the employee with a Termination agreement<\/a> for immediate signature<\/strong> which provided for a termination with a relatively short notice period until November 30, 2019. He gave the team coordinator a choice: either she signs the termination agreement immediately, or there is a extraordinary termination without notice<\/strong> associated with a criminal complaint<\/strong>.<\/p>\n\n\n\n

The employee asked for time to consider the termination agreement and wanted to seek legal advice on it. However, the managing director refused. Her only option was to sign the termination agreement immediately. Otherwise, the announced consequences would follow.<\/p>\n\n\n\n

The parties then have a ten-minute break<\/strong> They sat opposite each other in silence. Finally, the employee signed the termination agreement and terminated the employment relationship effective November 30, 2019.<\/p>\n\n\n\n

Shortly afterwards, she declared the Avoidance of the contract due to unlawful threat<\/strong>She subsequently asserted the continued existence of the employment relationship before the labor court.<\/p>\n\n\n\n

Federal Labor Court: No violation of the \u201cprinciple of fair negotiations\u201d<\/h2>\n\n\n\n

The lower courts initially assessed the legal situation differently. The Labor Court upheld the claim, while the Hamm Regional Labor Court dismissed it. The employee's appeal to the Federal Labor Court was unsuccessful.<\/p>\n\n\n\n

The Federal Labor Court initially saw no unlawful threat<\/strong>, because the managing director was entitled to take the specific threats into consideration. A reasonable employer would have, in such a case, extraordinary termination<\/a> and consider filing a criminal complaint. Therefore, the court ruled, there could be no question of any unlawfulness.<\/p>\n\n\n\n

\n
\n

If termination is imminent or has already been declared, you can count on our support.<\/p>Our services for you in the event of termination<\/a>\n <\/div>\n<\/div>\n\n\n\n

Nor did the employer violate the principle of fair negotiation by denying the employee the Obtaining legal advice<\/strong> refused. The employer therefore did not violate this order. <\/p>\n\n\n\n

The fact that the managing director only gave the employee the Possibility of immediate acceptance of the offer<\/strong> to conclude a termination agreement, ka violation of the principle of fair negotiation<\/strong>. In this respect, too, there was a breach of his legal obligations under Section 311 paragraph 2 no. 1 BGB<\/a> combined with Section 241 para. 2 German Civil Code<\/a> not given.<\/p>\n\n\n\n

The principle of fair negotiation \u2013 what does it actually mean?<\/h2>\n\n\n\n

The Federal Labor Court's decision is in line with previous decisions. The landmark ruling on the requirement of fair negotiations was already handed down in 2019. At that time, the court ruled that in the context of termination negotiations no unfair negotiation situations<\/strong> may be created.<\/p>\n\n\n\n

The principle of fair negotiation is intended to protect employees below the threshold of genuine lack of will by Freedom of decision in contract negotiations<\/strong>.<\/p>\n\n\n\n

A situation is considered unfair if a psychological pressure situation<\/strong> is created or exploited in a way that makes it significantly more difficult or even impossible for the contractual partner to make a free and considered decision.<\/p>\n\n\n\n

These include, for example, Exploitation of an objectively recognizable physical or psychological weakness<\/strong> or insufficient Language skills<\/strong>. The use of a moment of surprise<\/strong> (Visiting an employee at home) may constitute unfair treatment.<\/p>\n\n\n\n

However, it is only a Minimum level of fairness<\/strong>. Therefore, there is no violation of the principle of fair negotiations if<\/p>\n\n\n\n