No reimbursement of a recruitment commission by the employee

Effective agreement on reimbursement of costs by the employee possible?

At the end of March 2021, an employment contract was concluded between the parties through the relaying of a recruitment agency. As of 1 May 2021, the plaintiff (employee) was then employed by the defendant (employer). The defendant paid the commission in the amount of EUR 4,461.60 to the recruitment agency accordingly. After the expiry of the plaintiff's six-month probationary period as agreed in the employment contract, a further EUR 2,230.80 were to be paid to the recruitment agency.

Section 13 of the employment contract contained the plaintiff's obligation to reimburse the defendant for the commission if the employment relationship did not continue beyond 30 June 2022 and was terminated for reasons for which the plaintiff was responsible by the plaintiff himself, the defendant or by mutual agreement.

Due to the termination of the employment contract by the plaintiff in due time as of 30 June 2021, the defendant demanded reimbursement of the commission in the net amount of EUR 4,461.60. Initially, a remaining remuneration entitlement in the net amount of EUR 809.21 for the month of June 2021 was retained by the defendant and not paid to the plaintiff. As a result, the plaintiff filed a lawsuit requesting the court to rule that the defendant was not entitled to reimbursement of the commission in the amount of EUR 4,461.60 net from the concluded employment contract and demanded payment of the remaining remuneration entitlement in the amount of EUR 809.21 net plus interests. The defendant, on the other hand, filed a counterclaim for reimbursement of the remaining amount of the commission in the amount of EUR 3,652.39 plus interests.

Unreasonable disadvantage to the plaintiff under Section 307 (1) sentence 1 BGB by charging the commission

The BAG upheld the decisions of the lower courts according to which the employment contract obligation to reimburse the commission would unreasonably disadvantage the plaintiff under Section 307 (1) sentence 1 BGB contrary to the requirements of good faith.

According to the established case law of the BAG, an unreasonable disadvantage within the meaning of Section 307 (1) sentence 1 BGB exists if the impairment of a legally recognised interest of the employee is not covered by justified and reasonable interests of the employer or cannot be compensated by an equivalent advantage. In this respect, the interest of the defendant and the interest of the plaintiff had to be considered and evaluated in the present case.

The Schleswig-Holstein Regional Labour Court (Landesarbeitsgericht, LAG) (judgment of 12 May 2022 – 4 Sa 3/22) already stated in this respect that it is the original task of an employer to recruit suitable employees and that this can also be done by using recruitment agencies and that, in principle, there is also a comprehensible interest of the employer in the fact that these costs of the commission are to be amortised by a minimum period of employment of the employee in question with the employer. The provision of an obligation to reimburse the commission upon termination of the employment relationship would in principle correspond to this interest. In contrast, however, there is the legally recognised interest of an employee in the free choice of employment pursuant to Article 12 (1) sentence 1 of the German Constitution (Grundgesetz, GG). The obligation to reimburse the commission upon termination of the employment relationship is generally likely to restrict the employee in his or her freedom to choose a job. The purpose of a probationary period agreed in an employment contract, as is the case here, within the meaning of Section 622 (3) BGB is to give the employee and the employer the opportunity during this period to decide freely whether there is a real interest in a long-term relationship. Any impediment to this free decision significantly impairs this freedom of choice. Because of the employee's freedom of decision, the employer must accordingly bear the risk that the employment relationship will be terminated. The obligation to reimburse a commission in the event of termination of the employment relationship does not meet this distribution of risks in the present case. Instead, it constitutes an immense impairment on the employee's freedom of choice of occupation.

The addition that the plaintiff only has to reimburse the commission if the employment relationship was terminated for reasons for which he is responsible does not allow for a contrary assessment. On the one hand, it remains unclear what constitutes a "justifiable reason", which is why the LAG Schleswig-Holstein also assumes a violation of the transparency requirement under Section 307 (1) sentence 2 BGB, since the provision is not clear and comprehensible. On the other hand, the termination of the employment relationship during the probationary period by the employee does not require a reason anyway. Instead, the employee is completely free in his or her decision to remain in the employment relationship or not.

Ultimately, it must be taken into account that not every restriction of the job-related freedom of choice of occupation is unreasonable and thus not per se every obligation to reimburse a commission regulated in an employment contract constitutes an unreasonable disadvantage within the meaning of Section 307 (1) sentence 1 BGB. In the present case, however, the interference with the plaintiff's free choice is unreasonable. This impairment of the plaintiff's freedom to choose his occupation under Article 12 (1) sentence 1 GG is not opposed by any justified and equitable interests of the defendant and the impairment is also not compensated by equivalent advantages. In this context, it must also be taken into account that the employer bears the entrepreneurial risk of making financial investments that will not amortise in retrospect because the employee unexpectedly terminates his or her employment relationship.

Importance for the practice

Similar to repayment clauses for training or relocation costs paid by the employer, reimbursement clauses for commissions paid by the employer to a third party (recruitment agency) are generally subject to judicial review. In the present case, the employee has not gained any additional material value beyond obtaining the job, which would be contrary to a justified obligation to reimburse. Nor has the employee benefited from any relief from the economic burdens that actually affect him. This distinguishes the present constellations from the assumption of training or relocation costs.

In this respect, it makes sense to develop other solutions for minimising the employer's entrepreneurial risk. In this context, the LAG Schleswig-Holstein mentions, for example, that employers can initially only structure employment contracts for a fixed-term period (if this is legally permissible in the individual case), within ordinary terminations are excluded. Furthermore, a direct agreement could also be concluded with the recruitment agency, according to which a commission is only to be paid if the employee has not terminated the employment relationship by a certain date.