Key points summarised
A blanket obligation to indicate ‘any urgent work’ when reporting sick places employees at an unreasonable disadvantage (Section 307(1), first sentence, of the German Civil Code (BGB)).
The clause is also non-transparent, as it remains unclear which tasks are deemed urgent (Section 307(1), second sentence, of the German Civil Code (BGB)).
A specific duty to avert imminent damage in individual cases remains, provided that providing such information is possible and reasonable (Section 241(2) of the German Civil Code (BGB)).
The contractual clause: Additional duty to provide information when reporting sick
The Baden-Württemberg Regional Labour Court (LAG) had to rule on a provision in an employment contract under which an employee, when unable to work, was required not only to state the reason and the expected duration of their absence, but also to draw attention to ‘any urgent work’ at the same time.
When the employee reported sick during his late shift, he failed to point out that there was still material to be stored that was required for orders the following day. The employer regarded this as a breach of the contractual duty to provide information and issued a written warning. The employee demanded that the warning be removed from his personnel file.
The Regional Labour Court ruled in his favour. The clause in the employment contract did not establish a valid obligation to point out any outstanding urgent work when reporting sick.
Why is the clause invalid under Section 307 of the German Civil Code (BGB)?
The provision in question was a contract clause pre-formulated by the employer and thus constituted a general term and condition (AGB) within the meaning of Section 305(1) of the German Civil Code (BGB). It is therefore subject to a substantive review under Section 307 of the BGB.
The court made it clear that neither a statutory provision nor a generally recognised legal principle obliges employees to inform their employer of any urgent work at the same time as reporting sick. Nor does the duty of consideration under Section 241(2) of the German Civil Code (BGB) give rise to such a blanket obligation.
It is true that, in individual cases, an employee may have an ancillary duty to avert imminent damage to the employer. However, this applies only insofar as it is possible and reasonable for them to provide the relevant information. Such a duty to avert damage is not to be equated with a general duty to notify the employer of urgent work.
Unreasonable disadvantage arising from the blanket duty to provide notice
The clause did not distinguish between whether the employer was already aware of the outstanding work or whether the employer could readily obtain the necessary information themselves.
The Regional Labour Court (LAG) regarded this as an unreasonable disadvantage to the employee under Section 307(1), first sentence, of the German Civil Code (BGB). In principle, upon receipt of the sick note, the employer can check for themselves which tasks remain outstanding and ensure, through organisational measures, that they are completed.
The statutory duty to notify under Section 5(1), first sentence, of the EFZG already enables the employer to respond to the employee’s absence. It is therefore not justified to impose an additional blanket duty of organisation and information on the sick employee.
What does ‘any urgent work’ mean?
The clause also failed to meet the transparency requirement set out in Section 307(1), second sentence, of the German Civil Code (BGB). It was not clear to employees which tasks were to be classified as urgent and when a duty to notify would arise.
In particular, there were no criteria specifying by when a task had to be completed or what the consequences of a delay would be. Employees would therefore have to assess for themselves which tasks might be urgent and therefore required to be reported.
The Regional Labour Court (LAG) considered it possible, in principle, to specify the tasks covered in more detail. However, a more precise formulation does not automatically resolve the issue of disproportionate disadvantage. Even a more specific duty to provide information must be reasonable and objectively justified.
Does a duty to notify remain in individual cases?
The ruling does not entirely rule out a duty on the part of the employee to provide information. Under Section 241(2) of the German Civil Code (BGB), there may be an obligation in individual cases to draw attention to imminent damage or to avert it.
The prerequisite is that there is a concrete threat of damage and that it is possible and reasonable for the employee to provide such a warning even whilst on sick leave. However, a general obligation to specify any urgent outstanding work whenever reporting sick cannot be inferred from this.
Implications for the drafting of employment contracts
Employers should review their standard employment contract templates for similar clauses. A blanket duty to provide information in the event of incapacity for work due to illness cannot be made legally watertight solely by providing a more detailed description of the urgency.
Instead, companies should organise their cover arrangements in such a way that outstanding tasks can be identified and allocated independently upon receipt of a sick note. Additional information from the sick employee may only be requested within the scope of a reasonable duty of consideration existing in the specific individual case.
Practical assessment
The ruling demonstrates that the desire for smooth operational organisation does not justify every additional duty to provide information in the event of illness. In particular, employers should avoid assigning general organisational tasks to employees whilst they are unfit for work. We recommend reviewing existing contract templates and ensuring, from an organisational perspective, that cover is in place for absences due to illness.
Questions and Answers (FAQ)
- Do employees have to report outstanding work every time they report sick?
No. Section 5(1) of the EFZG requires employees to notify their employer of their incapacity for work and its expected duration. There is no general additional obligation to report outstanding tasks. - Are such notification obligations in an employment contract always invalid?
No. The specific wording and the circumstances of the individual case are decisive. Standardised clauses must, in particular, comply with Section 307 of the German Civil Code (BGB). - What applies if only the employee is aware of an urgent task?
In that case, a specific duty to provide information may exist if this would avert imminent damage and if providing such information is possible and reasonable. - Can employers define the term ‘urgent work’ more precisely?
Yes. A more specific definition can help to meet the requirement for transparency. However, it must also avoid placing the employee at an unreasonable disadvantage.
Conclusion
Employers cannot impose a blanket obligation on employees to mention ‘any urgent work’ every time they report sick. Such a standardised clause contravenes Section 307(1) of the German Civil Code (BGB). The organisation of operational processes during a period of sick leave remains, in principle, the employer’s responsibility. A duty on the part of the employee to provide such information may only be considered in absolutely exceptional cases, based on the specific circumstances of the individual case.
