What is a reliable sideline

Secondary job - does employer have to consent - right to consent?

Federal Labor Court 9th Senate

Az: 9 AZR 464/00

Judgment of December 11, 2001

Lower courts:

I. Labor Court Ludwigshafen - Az .: 8 Ca 2961/98 - judgment of March 8, 1999

II. State Labor Court Rhineland-Palatinate - Az .: 3 Sa 495/99 - Judgment of July 16, 1999

Guiding principle:

The employment contract clause stating that secondary employment requires the consent of the employer, makes taking up a professional activity subject to permission. The employee has the right to the consent of the employer if taking up the secondary activity does not affect operational interests.

The Ninth Senate of the Federal Labor Court ruled on the basis of the oral hearing on December 11, 2001:

On the appeal of the defendant, the judgment of the regional labor court Rhineland-Palatinate of July 16, 1999 - 3 Sa 495/99 - is overturned, insofar as it rejects the defendant's appeal against the verdict of the Ludwigshafen labor court of March 8, 1999 - 8 Ca 2961/98 Has.

Upon appeal by the defendant, the judgment of the Ludwigshafen Labor Court is amended.

The charges get dismissed.

The plaintiff has to bear the costs of the legal dispute.

By law!


The parties are arguing about the removal of a warning from the defendant's personnel records.

The plaintiff, who was born in 1948, has been employed by the defendant as a commercial employee since 1987. According to Section 7 No. 5 of the form-based employment contract, “a secondary job requires the consent” of the employer Building cleaning company In 1991 the defendant warned the plaintiff after it had established that the plaintiff was working for W on Saturdays without having asked for consent in accordance with Section 7 of the employment contract before taking up the secondary activity

In May 1997 the plaintiff was warned in writing because, contrary to instructions, he had not carried out any other work during the cycle times of his machine. In June 1997 the defendant warned him “for loitering”. Instead of 288 wheels, he had only machined 215 wheels. In September 1997 the plaintiff was warned for shift work (drilling valve holes). In two letters dated July 29, 1998, the defendant warned the plaintiff again. She once told him that, according to her findings, he was only doing 50% of the work recently. He strolls around the workplace and walks around the factory floor. In the further letter she complained that he had only machined 160 wheels instead of the 280 wheels possible according to the cycle times.

At the beginning of October 1998, the defendant asked the plaintiff to provide more information as to whether he had a secondary job and what scope it was Three hours a month, the defendant informed him by letter dated November 2, 1998 by her lawyer:


You have violated your obligation under the employment contract by doing a secondary job at W Mannheim without first obtaining the approval of our client.

According to the employment contract with our client, any secondary employment requires the consent of our client.

By taking up a secondary job without the consent of our client, you have violated your obligations under the employment contract.

We ask you to adhere to the employment contract in the future and, in particular, to obtain the consent of our client before engaging in any secondary employment.

On behalf of and on behalf of our client, we must urgently point out that you must meet your obligations under the employment contract in the future, otherwise you must expect the employment contract to be terminated. "

In the cover letter, it was explained to the plaintiff that the secondary activity would not be approved. To complain is his inadequate work performance. He always takes breaks from work and only performs around 50% of the work of his colleagues. He had already violated his employment contract by taking up and carrying out the secondary activity without authorization.

Also on November 2, 1998, the defendant issued another written warning to the plaintiff for “self-leave”.

On November 12, 1998, the plaintiff filed an action to have the warnings of November 2, 1998 and the accompanying letter removed. The labor court has upheld the lawsuit regarding the warnings. Otherwise it dismissed the action. On the appeal of the defendant, the state labor court partially changed the judgment of the labor court. It has dismissed the lawsuit regarding the “self-leave” warning. In this respect, the judgment is final. Otherwise it rejected the defendant's appeal.

The plaintiff essentially asserted that the defendant could not give him a warning about his work for the W. Activities outside the employment relationship cannot be made dependent on the approval of the employer. In addition, the defendant was aware of his secondary employment.

The plaintiff recently applied for the defendant to be sentenced to remove the warning issued to him in his attorney's letter of November 2, 1998, regarding secondary employment, from the personnel files.

The defendant has applied for the action to be dismissed. It essentially asserts that the clause serves to examine whether taking up the intended secondary employment would affect its operational interests. She has an interest in such a reservation of approval because otherwise she would not be able to control compliance with the statutory maximum working hours.

With the appeal approved by the Senate, the defendant seeks to dismiss the lawsuit. The plaintiff requests their rejection.

Reasons for decision

The defendant's revision is justified. It leads to the dismissal of the lawsuit. The plaintiff has no claim against the defendant to have the warning letter removed from his personnel records.

l. An employer exercises his contractual creditor rights with a warning. He informs the employee as his debtor of his contractual obligations and draws his attention to the violation of these obligations (complaint and documentation function). At the same time, he asks him to behave in accordance with the contract for the future and, because this seems appropriate to him, announces individual legal consequences in the event of a renewed breach of duty (warning function). Since a warning taken in the personal file is suitable to impair the employee in his professional advancement and his personal rights, a sensible employer may not issue a warning without sufficient cause and only keep it for an appropriate period of time. According to the constant jurisprudence of the Federal Labor Court (see SAG May 30, 1996 -6AZR 537/95-AP BGB § 611 Secondary Employment No. 2 = EzA BGB § 611 Warning No. 34 with further information), the employee concerned can therefore in corresponding application of §§ 242, 1004 BGB, request the removal of an incorrectly issued warning from its personnel records if the employer's legitimate interest in exercising its right to be a creditor is lacking. An employee can consequently request the removal of this impairment if the warning has not been formally properly issued, it contains incorrect factual assertions, it violates the principle of proportionality or there is no longer any legitimate interest on the part of the employer in the warning remaining in the personnel file. Insofar as the employee is accused of a breach of his contractual obligations, it does not matter whether this breach of obligations is subjectively reproachable to the employee; it is sufficient if the employer complains about an objective violation of the employee's contractual obligations. Such a complaint is not only unjustified if it contains incorrect factual assertions, but also if it is based on an incorrect legal assessment of the employee's behavior.

II. Measured against these principles, the plaintiff has no claim to removal.

1. The warning does not contain any incorrect facts. The defendant accuses the plaintiff of having carried out his secondary activity at W without first having obtained its approval. This complaint concerns the clause agreed in § 7 No. 5 of the employment contract, according to the wording of which secondary employment requires the consent of the defendant. According to the binding findings of the regional labor court (Section 561 (1) ZPO), this allegation is correct. The plaintiff started his work at W without the prior consent of the defendant.

2. The defendant is also authorized to warn the plaintiff of this behavior as a violation of his "obligations under the employment contract". It has not assessed the legal situation incorrectly.

a) The regional labor court assumed that the plaintiff had not committed any breach of duty. The employer can only prohibit secondary employment which is to be feared that would impair his interests as an employer. The defendant has not shown such impairments due to the nature or extent of the secondary activity of the plaintiff. A connection between the alleged underperformance of the plaintiff and his secondary activity is not evident, at least not obvious given the undisputed extent of the secondary activity. If the plaintiff should have violated the provisions of the Working Hours Act with the secondary activity, it is not up to the defendant to sanction this by issuing a warning. The plaintiff owed her no account of the employment which he did outside of the working hours owed to the defendant.

b) The Senate does not agree with these statements.

aa) The regional labor court initially overlooked the fact that the subject of the appeal proceedings was not a ban on secondary employment at W. The labor court had already legally dismissed the action aimed at removing this letter from the personnel files. The content of the warning to be assessed by the appellate court was the accusation based on Section 7 No. 5 of the employment contract that the plaintiff had violated his obligations under the employment contract by failing to obtain prior consent to take up secondary employment.

bb) The State Labor Court also does not sufficiently differentiate between an employment contract-agreed “ban on secondary employment” and an employment-contractually agreed “approval reservation”, as is the case here. According to Section 7 No. 5 of the employment contract, secondary employment requires the consent of the defendant. The plaintiff is therefore not prohibited from any secondary activity, but only has to obtain the defendant's consent beforehand. Such a reservation of permission does not entitle the employer to arbitrarily refuse to take up a secondary activity. If the employer's operational interests are not expected to be adversely affected, the employee has the right to be granted consent. A reservation of permission is therefore not to be equated with a ban on secondary employment (Senate September 21, 1999 - 9 AZR 759/98 - AP BGB § 611 secondary employment No. 6 = EzA BGB § 611 secondary employment No. 3 with further references). It only serves to enable the employer to check whether his interests are being impaired before taking up the secondary activity. It therefore does not violate Article 12, Paragraph 1 of the Basic Law, which also protects the freedom to take up a part-time job (BAG June 24, 1999 - 6 AZR 605 / 97- AP BGB § 611 Secondary activity No. 5 = EzA BGB § 611 Secondary job no. 2). The possible restriction of the rights of freedom from Article 12, Paragraph 1 of the Basic Law is limited. As a result, nothing else is suggested to the employee than to inform the employer before taking up a secondary job. If the employee violates his obligation to obtain approval, a warning is also justified if he is entitled to it (BAG 30 May 1996 - 6 AZR 537/95-loc. Cit.).

In the literature, however, such a clause is often judged to be legally ineffective. They contain an “absolute ban on secondary employment with the approval requirement”, which unreasonably disadvantages the employee. An interest on the part of the employer in comprehensive knowledge of all secondary jobs that do not affect him at all and their control should not be recognized (cf. Hanau / Preis Der Arbeitsvertrag, status: July 1997 IIN 10 marginal number 21 et seq .; Wank secondary employment marginal number 369; Säcker / Oetker The regulation law of social security employees in the field of tension between labor law and civil service law ZfA 1987, 95 (123)). But that is not how the clause should be understood. It is clearly aimed at other professional activities and not at taking over, for example, honorary offices or political electoral offices.

cc) The judgment of the regional labor court that the plaintiff had not committed any breach of duty contradicts its own finding, according to which the plaintiff, contrary to the employment contract, did not obtain the defendant's consent to take up part-time employment at W.

dd) The consideration of the state labor court that the warning is inadmissible because it is not the employer's task to monitor compliance with working time regulations is not in accordance with applicable law. In the interests of the employee's health and safety at work (Section 1 (1) ArbZG), the public working time law sets limits on the permitted working time. According to Section 2, Paragraph 1, Clause 1, Clause 2 ArbZG, working hours for several employers must be added together. The employer, as the addressee of occupational health and safety, must monitor that the maximum permissible working day (Section 3 ArbZG) and rest periods (Section 5 ArbZG) are observed. As can be seen from the fine and penal provisions of Sections 22, 23 ArbZG (see also Hunold Secondary Employment and Working Hours Act, NZA 1995, 558), the employer is responsible for compliance with working time protection. The employee may only be employed if the provisions of the ArbZG are complied with (see Senate June 26, 2001 -9 AZR 343/00 - EzA §611 Secondary activity No. 4, also intended for publication in the official collection, to the FahrpersonalG). The employer thus has a legitimate interest in knowing about secondary employment.

Insofar as it cannot be ruled out that the existing limits will be exceeded, the employer is therefore entitled to information from the employee about whether and the scope of a secondary activity (see BAG January 18, 1996 - 6AZR 314/95 - AP BGB § 242 obligation to provide information No. 25 = EzA BGB § 242 obligation to provide information No. 5). For this, the question of whether the establishment of an employment relationship, the contractual fulfillment of which leads to a violation of the working time law, is wholly or partially void, does not matter. Irrespective of this, the employer must ensure that the provisions of the ArbZG, which not only protect the employee, but also the protection of other employees, are actually observed.

ee) The warning is also not disproportionate. Because the activity of the plaintiff at W, taking into account his working time of 40 hours, leads to the defendant regularly exceeding the working hours permitted under Section 3 ArbZG. According to this, the employee may regularly only be employed eight hours a day (48 hours / week). The working time may be extended to up to ten hours on working days if the average working time of eight hours is reached in the compensation period of 24 weeks / 6 months. Working hours of more than ten hours are generally not permitted. As the labor court correctly determined, according to the data provided by the plaintiff, the maximum daily working hours are regularly exceeded. Instead of the maximum eight hours he works, he works an average of 8.65 hours a day.

III. The decision on costs is based on § 91 ZPO.