As always, this question is generally difficult to answer: each individual case must be examined.
Basically, every employer is obliged to keep their company running as part of their business responsibilities and interests. The company's corresponding know-how is also very important for this. The competition varies depending on the branch of activity.
The employer's interests and the loss of his know-how during an employment relationship can be protected by expressly agreeing to a ban on secondary employment. In doing so, care must always be taken to ensure that the freedom of occupation under Article 12 Paragraph 1 of the Basic Law and the employee's general personal rights under Article 2 Paragraph 1 of the Basic Law are not overly affected. The following applies: an employment contract only provides the employer with a certain period of time. If an employer were to include a general ban on secondary employment as a general working condition (AAG) in the employment contract, this AAG would be ineffective according to Section 307 Paragraph 1 of the German Civil Code.
Secondary activities are not prohibited per se.
It must always be checked whether the employee's secondary activity is prohibited due to legal or contractual requirements.
Legal requirements can include the non-competition clause in accordance with Section 60 of the German Commercial Code (HGB) or the legally prescribed rest period in accordance with Section 5 Paragraph 1 of the German Working Hours Act (ArbZG). In this regard, the employer is responsible for ensuring that the secondary employment does not represent a particular impairment for the employee.
Contractual provisions also arise, among other things, from the employee's duty of consideration towards the employer, which arises as a secondary obligation from the employment contract according to Section 241 Paragraph 2 of the German Civil Code (BGB).
With regard to the know-how and the associated interests of the employer, it must be checked whether the new employer is a competitor of the current employer.
Section 60 of the German Commercial Code (HGB) applies to commercial agents of a company, but was legally established as an outgrowth of the employee's secondary obligation under the employment contract in accordance with Section 241 Paragraph 2 of the German Civil Code (BGB).
According to Section 241 Paragraph 2 of the German Civil Code (BGB), employees and persons similar to employees are always prohibited from starting work for a competing company (including in the employer's line of business) in addition to their existing employment contract.
In the event of violations, various legal consequences may arise.
- Claims for damages (Section 61, Paragraph 1, Clause 1 of the German Commercial Code (HGB) in conjunction with Sections 249 et seq. of the German Civil Code (BGB)); Note: limitation period of 3 months (Section 61, Paragraph 2 of the German Commercial Code (HGB))
- The employer's right to intervene in the employee's own business (Section 61, Paragraph 1, Clause 2 of the German Commercial Code); Note: limitation period of 3 months (Section 61, Paragraph 2 of the German Commercial Code)
- Injunction claims (also possible by means of a preventive injunction)
- Termination without notice possible (§ 626 BGB)
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