part-time job
March 4, 2011 | 25,00 EUR | answered by Jan Wilking
I am considering taking on a second job that is related to my main job but does not create a conflict of interest: handling claims for an insurance company as my main job, and working as an independent expert (conducting damage assessments) for a separate organization, only accepting assignments from other companies.
According to my contract, I am only allowed to have a second job with the employer's approval.
If the employer refuses permission and I go ahead with the second job anyway, what would be the legal consequences if the employer finds out?
Is there a risk that the employer will find out, possibly through the tax authorities?
Dear inquirer,
I am happy to answer your inquiry taking into account the facts you have described and your contribution as follows:
Basically, an employee is free to use their labor outside of working hours.
It is therefore necessary to examine the implications of the consent clause in the employment contract. A general prohibition of secondary employment is usually invalid. However, a different rule applies when the exercise of a secondary activity - as in your case - is subject to the employer's approval. Such a provision is generally permissible, but the employer can only refuse approval if the intended secondary activity does not harm legitimate business interests. It should be noted that an employee is generally not allowed to compete with their employer. This is stated in § 60 HGB for commercial enterprises and in § 242 BGB for other employees.
Therefore, approval should be granted to you if you are not competing with your employer, the activity takes place clearly outside your regular working hours, and your work is not affected by the activity. In the past, labor courts have repeatedly concluded that such approval is generally a formality and prohibitions are only allowed in exceptional cases.
I therefore advise against taking on a secondary job without informing your employer. This may be noticed sooner or later due to the social security contributions and taxes to be paid by both employers. In this case, there may be a breach of contract, which could result in a warning or, in case of repeated violation, dismissal. Even though courts have often not considered a breach of the reporting obligation a serious violation of the employment contract, I would not take this risk, especially considering the fact that approval must generally be granted.
I hope this has provided you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up question function.
Please note that without knowledge of all circumstances, I cannot provide a definitive advice within the scope of this initial consultation. If you wish for a conclusive assessment of the situation, I recommend contacting a lawyer and discussing the situation with them while providing access to all relevant documents.
Best regards
