The multi-cultural nature of German companies 

More and more foreign workers are employed in Germany with very limited knowledge of the German language. It is the case that in order to reduce problems with understanding, companies fill entire working teams with employees who share a common native language and who have only minimal or no knowledge of the German language. Such a solution is obviously not suitable for every company.  

The practical and legal problem of the language barrier 

The language barrier can quickly give rise to a number of practical and legal problems. Working instructions cannot be properly understood, safety advice is overlooked or misconstrued, operational rules are ignored – often unwittingly. Also at a contractual level, differences of opinion can arise between an employer and an employee who is not proficient in the German language. The contract of employment which is drafted in German - and which has nevertheless been signed by the employee - cannot be understood or correctly understood by the employee either in whole or in part. In cases of dispute, it is not unusual for the employee to plead that the employer was aware of his lacking language skills and can therefore not invoke the contractual provisions which were drafted in favour of the employer or cannot derive claims against the employee based on disregard for working instructions or operational rules.     

Issues for the employer

Is the employer obliged under his duty of care to provide employment contracts and termination contracts, operational rules, working instructions, warnings, dismissals and even safety advice in languages which can be understood by every employee? Does failure to do this for an employee constitute discrimination against such employee based on his origin? 

Obligation to acquire sufficient language skills 

An employer based in Germany may require from every employee, regardless of their origin, that they carry out their work in the German language. A special contractual rule for this is not required. The conclusion of a written contract of employment in the German language is generally also valid if the employee has not understood the contract he has signed due to lack of language skills. In particular, this is also the case if the employee does not realise that the contract is only for a fixed term and is not supposed to be indefinite. The employer can also issue instructions of work in German even if he is aware of the employee’s lacking language skills. If instructed to do so, the employee is obliged to improve his German by attending a language course so that he can perform his work in accordance with the contract of employment. The contractual performance of his work also includes, however, adherence to operational rules and safety regulations drafted in the German language. According to the case-law of the Federal Employment Court, neither a working instruction formulated in German nor a contractual or operational rule infringes the prohibition on discrimination based on the ethnic origin of the employee. If the employee with deficient language skills refuses to attend a German course to acquire the German language skills required to perform his duties, the employer can announce a dismissal without prior warning based on personal reasons.

Problem 1: Written Warnings 

The legal position is not so clear-cut in the case of a written warning: According to § 130 German Civil Code, a written warning based on a contractual breach by the employee is valid once it is received by the employee and he becomes aware of its content. The written warning is invalid if the employee does not understand the content due to insufficient language skills. According to the circumstances of the individual case, it can therefore be expected of the employer to prepare a translation of the written warning if the employer is aware of the employee’s lack of language skills. 

Problem 2: Dismissals

The legal situation is also difficult in the case of dismissals because, again pursuant to § 130 German Civil Code, a dismissal is also dependent upon receipt. The question of whether lacking language skills can prevent the receipt of a dismissal or whether this should be resolved in the context of a subsequent claim for unfair dismissal is highly controversial in case-law and literature. It is clear, however, that in the case of a dismissal, the employer owes the employee a greater duty of care than when a contract of employment is concluded. This is justified by the employee’s powerlessness in the face of a dismissal: A contract of employment requires the agreement of the employee, whilst a dismissal does not. 

Problem 3: Settlement Agreements

The question of whether an employee has correctly understood also arises in the context of settlement clauses to be found in termination agreements when a contract of employment is ended. In a settlement clause, the parties mutually waive financial claims and other rights arising out of the relationship of employment. If the employee is unable to understand the consequences of such a clause due to poor language skills, he can, according to the circumstances of the individual case, challenge the declaration due to error pursuant to § 119 German Civil Code.

What steps should be taken?

If the poor language skills of the employee are obvious, the employer should provide a translation of dismissals, termination agreements and written warnings in a language that is comprehensible to the employee. This is always preferable to litigation before the Employment Courts - even if the employer might be ultimately successful. In many cases where large parts of the workforce are involved in safety-relevant areas with only limited German language skills, it is in the interests of their employers - albeit without a legal obligation - to also provide safety instructions in the native language of the employees. In this context, it is certainly beneficial to both businesses and employees to take steps which go beyond what is required as a matter of law.

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