Anyone who has been fraudulently deceived by their contractual partner before or when concluding the contract can subsequently rescind the contract by contesting it. This is the law (Section 123 BGB). A deception can also be the concealment of a relevant circumstance that should have been disclosed to the contractual partner. A deception is above all the consciously untruthful information, thus the lie.
In principle, this also applies to the employment contract. And yet, in certain cases, the German courts refuse to allow the employer to contest the employment contract, even though the employee has lied during the job interview or when filling out a personal questionnaire in advance of the employment contract. There are cases in which the lie is a deception but is not maliciously told, and this is an essential condition for the contract to be avoided. According to the labor courts, there is no fraudulent intent in the deception, especially if the job seeker has no other way to effectively defend himself against an impermissible question from the potential employer than to lie.
The problem can be easily illustrated with the example of a female jobseeker who is pregnant at the time of the interview. Due to the principle of equal treatment (which is reflected in the EC Directive 76/207/EEC), the question of the employer about an existing pregnancy of the job seeker is discriminatory in the sense of § 611 a BGB and therefore inadmissible. But how should the job seeker behave if the future boss asks anyway? If she admits to her pregnancy, she runs the risk of not getting the job. But if she doesn't answer at all, perhaps even claiming that she doesn't have to answer an impermissible question, then for most employers that will be answer enough. Because if the jobseeker were not pregnant, she would say so. So whether the jobseeker answers truthfully or remains silent has the same result for her. In most cases, she will not get the job she is aiming for. But in the end, the inadmissibility of the question about pregnancy has no effect at all. Whether it is permissible or not, the employer knows what he wanted to know. The only way out for the pregnant job seeker who is asked about her pregnancy is therefore to lie outright by claiming not to be pregnant.
This lie is not considered fraudulent by the courts.
According to a recently published decision of the Federal Labor Court dated February 6, 2003 (BAG 2 AZR 621/91), this applies even if the pregnant job seeker is initially unable to perform the work due to a prohibition of employment under maternity protection law(heavy physical labor, handling hazardous substances, harmful emissions in the workplace, etc.). In further developing the previous case law, the BAG has ruled that the prohibition of employment under the law on the protection of expectant and nursing mothers is generally only of a temporary nature and thus cannot lead to a permanent disruption of the contractual relationship.
The protection of job seekers is further supplemented, particularly with regard to questions about their state of health or possible pregnancies, by the fact that rescission is excluded not only in the case of untruthful statements made to the personnel manager, but also if the job seeker lies in response to a question from the company doctor, by whom he must be examined as part of the recruitment process.
Despite the legal possibility described here of lying directly to the future employer during the job interview, every job seeker would do well to deal with this issue in detail before the job interview and to be clear about how they will respond to "unpleasant" questions. It will never do the personal climate any good if it turns out at some point that the jobseeker has lied to the employer during the interview. On the other hand, you should have the courage to tell a lie in a job interview if the employer is trying to find out whether the job seeker fulfills the desired requirements by unfair means.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.