FAQ on working
If the candidate is being interviewed for an employment position under private law, according to § 670 of the German Civil Code (BGB) the employer is, on principle, required to pay the applicant's travel expenses at a standard rate. However, this right is not mandatory. This means that the employer can exclude a claim for reimbursement by specifically informing the candidate in advance that costs will not be borne.
If the candidate is being interviewed for a public service position, the matter is subject to the legislation on travel expenses passed by the federation or the individual federal state. In this case the candidate is only eligible to declare an interview as an official journey if he or she is already a public servant ("Beamter") and has been called for interview.
In other cases, i.e. if the candidate is not as yet a public servant, expenses for travel to interviews for a public service position may be reimbursed in line with the respective, relevant regulations, directives and enactments. These may differ considerably: they may not provide for any reimbursement at all, or only for reimbursement of travel costs and not accommodation and subsistence. In some cases, travel from abroad is excluded from reimbursement or only half the costs are paid. There are also regulations which allow the respective faculty to reimburse travel expenses at their own discretion. For example, reimbursement can be charged to the faculty budget if it is likely that a candidate will be included on an interview shortlist.
Question from an experienced ITN (Initial Training Network) researcher, who, three months after completing his assignment, was asked to pay back a sum of money that had apparently been miscalculated by his German host and employer yet had been laid down in his contract. The salary components for ITN fellows are precisely specified by relevant EU Directives and must be paid to the fellow in the full amount. According to the EU Directives, it is possible to increase this salary, but only from the institution's own funds, not from ITN project funds. According to the EU, employment contracts are subject to the labour legislation, tax code etc. in effect in each country. What can be done in this case?
In the event of a possible overpayment of salary to the employee, the legal situation is as follows:
- The first decisive factor is the amount agreed upon by the employer and the employee. If the employer made an error by indicating a higher salary in the employment contract, this error can only be corrected within a few days of being discovered by disputing this mistake vis-à-vis the employee. If the mistake is not disputed, the salary laid down in the contract becomes a permanently binding part of the contract and can only be corrected by terminating the contract with the option of re-employment under altered conditions.
- The employer is in a better position if the employment contract mentions the external reference on which it is based, such as EU Directives, specific sponsorship programmes, or a labour agreement. If the salary indicated in the employment contract differs from the external regulations that are referenced in the contract, the employer can correct this inconsistency by promptly making a declaration of avoidance.
- If the overpayment has occurred with no contractual basis (for example: the net salary as per contract is 2,800 EUR, but the employer pays 3,800 EUR by accident), the employer can demand repayment of the amount overpaid even after a longer period of time. The employee can, however, object that s/he has meanwhile spent the amount overpaid on necessary living expenses, if this is factually true. If the money is still available, however, the employee must repay it.
- If the employment contract or a labour agreement (such as TVöD) referenced in the contract contains a disclaimer, this disclaimer is valid even to the detriment of the employer. The employer must therefore declare that an overpayment has been made within the agreed cut-off period.
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