The relationship of empathy: What is permissible during trial work?

Some employers want applicants to work on a trial basis before starting a job.

The relationship of empathy: What is permissible during trial work?

Some employers want applicants to work on a trial basis before starting a job. But: What rules actually apply to this time?

The application process for an advertised position is well advanced. But now the employer wants to play it safe and demands that the applicant work for a few days on a trial basis. What rights and obligations does this entail? Important questions and answers.

In which sectors is a trial work actually common?

It can happen in all industries that employers require a trial work. "Although the word trial work is misleading," says Jürgen Markowski, a specialist lawyer for labor law from Offenburg.

It's not about applicants doing their job and getting paid for it. Rather, it is usually a so-called empathy relationship. According to Markowski, this is more common in smaller companies. There, the personal contact between management level and employees is often more intensive.

What are the reasons for an empathy relationship?

"Employees and employers get to know each other better and explore without obligation whether things are a good match," says Nathalie Oberthür, a specialist in labor law from Cologne. For example, the employer can obtain feedback from immediate colleagues. Can you imagine working with the candidate in the future?

Trial work can also have advantages for applicants themselves. They can check whether the company or the position suits them. "Ultimately, it's unpleasant when you have to realize during the probationary period during an official employment relationship that you can't get along and then quit," says Markowski. A dismissal during the probationary period may also not look good on your CV.

But isn't distrust hidden behind the employer's request for empathy? "Usually not," says Oberthür. Because in the job interview it is only possible to assess to a limited extent whether a potential employee appears friendly in everyday life, for example, or how he or she approaches and communicates with others.

How long can such an empathetic relationship actually last?

A relationship of empathy is always limited in time. "A period of up to one week is permitted under labor law," says Markowski. Usually it is up to two days. The longer the so-called empathy relationship lasts, the more likely it is to be evaluated from a legal point of view as an employment relationship, which not least goes hand in hand with a claim to remuneration.

Do I need a contract for the trial work?

"Both sides are strongly recommended to do that," says Oberthür, who chairs the Labor Law Committee of the German Lawyers' Association. In a contract, employer and applicant agree in writing how long the empathy relationship lasts, that this does not establish an employment relationship and that there is therefore no claim to remuneration. "At most, there can be compensation, for example in the form of reimbursement of travel expenses," says Markowski.

What does an empathy relationship mean for applicants?

The employer may not give the applicant any instructions or involve them in work processes. For example, applicants do not have to appear punctually at a certain time. "The point of wearing service clothes is also eliminated," says Markowski. There must not be a concrete work result. "Applicants just run along, nothing more."

Anyone who is doing a trial job in gastronomy, for example, is allowed to take customer orders, carry trays and generally walk around in the restaurant. However, employing applicants for a few days as a substitute for missing employees would already constitute an employment relationship from the point of view of employment law.

What should applicants pay attention to?

If a candidate does end up working full time for a week, he or she should demand payment - especially if he or she doesn't get the job. "Anyone who produces concrete work results is entitled to remuneration - even if this supposed empathy lasts less than a week," says Markowski.

What about insurance?

Job seekers are not yet employees and are therefore not insured under statutory accident insurance. However, as an exception, they can be covered by insurance with individual activities, says Oberthür. For example, when they perform "work of economic value" for the company.

(This article was first published on Monday, December 05, 2022.)

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