Lack of linguistic knowledge is no release from an employment contract
The internationalisation of the German economy as a result of cross-border undertakings and corporate structures and the increased recruitment of foreign-language employees and executives to multinational teams are raising the importance of foreign languages in business practice. This applies at the level of both individual law and collective law and can result in unexpected stumbling blocks – for example, where notices of termination are concerned (cf. Mückl/Marxen, ArbRAktuell 2012, 465). Legal requirements on the choice of language in working life hardly exist and even where they do, they often go virtually unnoticed.
Important clarifications in this regard were made by the German Federal Employment Court (Bundesarbeitsgericht – BAG) in its decision of 19 March 2014 (5AZR 252/12 (B)). The Federal Employment Court decided that a written employment contract drafted in German is validly concluded even if the employee signing it does not (adequately) understand German.
In the deliberated case, the plaintiff was a Portuguese national resident in Portugal who did not speak German. He was employed as a driver by a haulage firm in international transport and, following employment negotiations conducted in Portuguese, signed a preformulated employment contract drafted in German. The contract included a provision on preclusive periods, under which the claims arising from and in connection with the employment relationship were to lapse if not asserted in writing vis-à-vis the other contractual party within three months of accrual. This was something that the Plaintiff was unwilling to accept.
In the case to be decided, the question of whether this provision had become part of the subject matter of the contract followed on, among other things, from the question of whether Portuguese law was also applicable. As the facts had not been clarified at the previous instance, the Federal Employment Court was unable to reach a decision on this.
Irrespective of this question, however, the Federal Employment Court clearly stated that an employment contract concluded in German is still deemed to become effective if the employee signs it without (sufficient) knowledge of German. This is because no person is ultimately obliged to sign an employment agreement in a foreign language. The relevant applicant can ask for a reflection period to consider the matter, for a translation of the contract or can organize a translation himself before signing. If he fails to take advantage of these possibilities, preferring instead to conclude without compulsion a contract in a language that he does not understand, the employer can assume that the employee agrees to the overall contract in spite of his lack of language knowledge. In the Federal Employment Court’s view, he is not to be treated any differently to a person who signs a document without reading it first. It is irrelevant whether the employment contract is concluded in the language in which the employment negotiations were held, since even if negotiations took place in a different language, the conclusion of an employment contract in German is based on a conscious decision by the employee. Upon signing the contract, the parties then tacitly agree to German as the definitive contractual language.
With this in mind, the Federal Employment Court’s decision has thus provided companies with legal certainty. An overview of the employment-law risks associated with the use of foreign languages and the right way to manage these risks is given in the article by Mückl/Butz in: ArbRAktuell 2013, p. 34 et seq.
Practice Group: Employment & Pensions