Exclusion clauses / period of limitation

Contractual exclusion clauses

Contractual exclusion clauses theoretically work both ways: for workers and for bosses. But practically exclusion clauses are deadlines for workers to make a claim

In short: bosses often put 2 exclusion clauses in work contracts

  • first clause: 3 months to formally assert a claim
  • second clause: 3 months to file a lawsuit

This means you have three months to assert your claim (formally or informally) and from this day on you have three more months to file a lawsuit.

BUT: Exclusion clauses do not apply for all claims. They are mainly important for payment claims. Payslips for example can always be claimed. Please contact a legal expert (unions, lawyers …).

Purpose of (contractual) exclusion clauses

More and more contracts contain exclusion clauses. Bosses include these clauses to protect themselfes from legal action of workers. Even tough these clauses are valid for both sides in almost all cases only bosses benefit from them.

Quote from hensche.de (translated with deepl.com)

In the practical result of their application, preclusion periods almost exclusively concern the legal claims of employees, especially wage claims. Preclusive periods are therefore advantageous for employers in particular.

This is because it is primarily employees who have financial claims against their contractual partner and not vice versa. Employer claims are only affected in exceptional cases.

 

Exclusion clauses exclude any claims that passed a certain period (often the legal minimum: 3 months). Meaning that workers can only claim something within that period. After this time is over there is nothing to claim anymore.

Examples of (contractural) exclusion clauses

Quote from Lawyer Manuela Kamp (translated with deepl.com):

An exclusion clause in an employment contract could, for example, read as follows:

All mutual claims arising from this employment contract shall be asserted by the contracting parties in text form against the other contracting party within 3 months of their due date.

Thus, if a wage claim is due on the 15th of the following month according to a contractual provision, the wage claim for the month of May 2018, which became due on 15 June 2018, must have been asserted in text form no later than 15 September 2018 according to the wording of the above exclusion clause.  In text form means in the form of a signed letter in paper form, an SMS, by fax or by e-mail, e.g.

Legality of (contractual) exclusion clauses

Make sure to ask an expert if the exclusion clauses in your contract are legally valid. If not, then there is no exclusion clause at all and you have more time to make your claims.

Quote from Lawyer Manuela Kamp (translated with deepl.com):

However, the expiry clause in the employment contract must also withstand a contractual review, i.e. it must be effective. Since an employment contract, as a contract pre-formulated by the employer, is subject to clause review according to § 305 ff BGB, such forfeiture clauses must also always be reviewed for their effectiveness.

Various rulings have been issued on the question of the effectiveness of contractual clauses, in particular also by the Federal Labour Court. The following effectiveness requirements must be pointed out in particular:

A contractual exclusion clause must provide for a period for assertion of at least 3 months, BAG judgement of 28.9.2005 – 5 AZR 52/05.

A contractual exclusion clause must expressly exclude the statutory minimum wage from the requirement of timely assertion in contracts concluded after 31 December 2014, BAG Judgment of 18 September 2018 – 9 AZR 162/18

A contractual exclusion clause may only require assertion in text form and no longer by written form in contracts concluded after 1 October 2016. This requirement is based on an amendment to section 309 no. 13 BGB.

1 or 2 exclusion clauses?

Contracts can include 1 or 2 stages exclusion clauses. One clause for each stage of making a claim. Stage 1: making a claim outside of court. Stage 2: making a claim at court.

  • 1-stages exclusion clause
    • The 1-stages exclusion clause defines one period until when the “assertion of claims” has to be done outside of court.

Quote from hensche.de (translated with deepl.com)

One-stage exclusion clauses provide that the claims must be asserted against the other party to the contract by a certain date after they have become due.

  • 2-stages exclusion clause
    • The 2-stages exclusion clause defines 2 periods, one per stage:
      • First stage: Period until when the “assertion of claims” has to be done outside of court.
      • Second stage: Period until when the “assertion of claims” has to be done at court. Meaning time until when your have to #SueYourBoss!

Note: Collective agreements often include exclusion clauses as well.

Legal exclusion clauses / “statutory period of limitation” (“Verjährungsfrist”)

There is a general legal exclusion clause called “(statutory) period of limitation”. This period is 3 years.

Quote from Lawyer Manuela Kamp (translated with deepl.com):

The statutory limitation period is actually 3 years, starting at the end of the year in which the claim arose. A wage claim from May 2018 could therefore only become time-barred on 31 December 2021.