Revocability of employment termination agreements

The Federal Labour Court (BAG) has decided that an employee cannot revoke a termination agreement that terminates the employment relationship even if it was concluded in her private home.

According to the BAG, a termination agreement could, however, be invalid if it was concluded in disregard of the requirement of fair negotiations.

The plaintiff was employed by the defendant as a cleaner. She concluded a termination agreement in her apartment with the defendant's partner which provides for the immediate termination of the employment relationship without payment of a severance payment. The cause and course of the contract negotiations are controversial. According to the plaintiff, she was ill on the day the contract was concluded. She challenged the termination agreement because of error, fraudulent deception and unlawful threat and alternatively revoked it. With its complaint it turns among other things against the termination of its employer-employee relationship by the termination agreement.
The Regional Labour Court had dismissed the action.

The BAG set aside this judgment on the appeal of the plaintiff and referred the case back to the Higher Labour Court for a new hearing and decision.

In the opinion of the BAG, the Higher Labour Court recognized without error of law that no ground for rescission can be inferred from the plaintiff's submission and that the revocation of a termination agreement under labour law on a legal basis is not possible. Although the legislature had stated in § 312 (1) in conjunction with § 312 (1) in conjunction with § 312 (1) in conjunction with § 312 (1) in conjunction with § 312 in conjunction with § 312 in conjunction with § 312 in conjunction with § 312 in conjunction with § 312 in conjunction with. § 312g BGB consumers with contracts, which were closed outside of business premises, a right of revocation after ? 355 BGB granted 312g. Also employees are consumers. In the legislative procedure however the will of the legislator had become clear not to include termination agreements under labour law in the scope of application of §§ 312 ff. of the German Civil Code. BGB to include.

However, the Higher Labour Court had not examined whether the requirement of fair negotiations had been observed before the termination agreement was concluded. This requirement was a secondary obligation under the employment contract. It is violated if one party creates a psychological pressure situation which makes it considerably more difficult for the contracting party to make a free and considered decision on the conclusion of a termination agreement. This could be the case here in particular if a weakness of the plaintiff due to illness had been deliberately exploited. The defendant would then have to pay damages. It would have to restore the condition that would exist without the breach of duty (so-called in rem restitution, § 249 para. 1 BGB). The plaintiff would then be placed in such a position as if it had not concluded the termination agreement. This led to the continuation of the employment relationship. The Higher Labour Court would therefore have to reassess the validity of the severance agreement.

Previous instance
LArbG Hanover, jurisdiction from 07.11.2017 - 10 Sa 1159/16

Source: BAG press release No. 6/2019 of 07.02.2019