In practice, it is often assumed that an employment relationship begins on the day on which the employment contract was signed – or at the latest with the first planned working day. However, a current judgment by the Lower Saxony-Bremen State Social Court shows that this is not always the case.
Employment contract signed, but directly sick
A 36-year-old man from the district of Cuxhaven concluded an employment contract as a warehouse clerk at a cleaning company with a monthly gross salary of 3,000 euros, as ver.di reported. He was supposed to work in November. However, he reported sick at the beginning of the employment relationship and did not accept the activity. Two weeks later, the employer terminated within the trial period.
The man then applied for sick pay from his health insurance company. However, the health insurance company rejected this: there was no employment relationship subject to social security contributions because the man never actually worked and received no wages. He complained of the employer and asked for a retrospective registration for social security – but without success.
Employment relationship only begins with entitlement to payment
The court made it clear that an employment relationship in the social security sense does not automatically begin to sign the contract. The decisive factor is the right to remuneration – and in the event of an illness, this only arises after a four -week uninterrupted period of employment (Section 3 (3) of the Remuneration Act). Since this waiting time was not fulfilled, the employer did not have to register for social security. There was no claim for continued payments – and therefore no entitlement to sick pay.
Goal: Protect employers from continuing wages
The background to this regulation is that employers should be protected from high costs if newly hired employees become unable to work immediately after the hiring. It is only after four weeks of uninterrupted employment that the obligation to continue continued in the disease applies.
Important information for both sides
For workers, this means that those who become sick before the first working day and never actually accept the work can be without wages and without sickness benefit. In such cases, it is important to first search for the health insurance dialogue before legal action against the employer is taken.
The judgment is also relevant for employers – especially with regard to the social security registration and potential continued payments. It is advisable to make clear contractual regulations and to document the actual start of work well.
D. Maier / Redaktion Finanzen.net