In Germany, as in every society, there are taboos. Talking about your own salary is often considered impolite in Germany. Questions about other people’s salaries are also considered inappropriate.
This social taboo is often reinforced in employment contracts in the form of a confidentiality clause.
Case study:
Fischer’s employment contract contains the following clause:
„The employee undertakes to treat the amount of remuneration confidentially, in the interests of industrial peace also towards other company employees.“
Mr. Fischer chats with his colleagues about his salary.
Does Mr. Fischer have to fear legal consequences due to a possible breach of duty based on this confidentiality clause?
Whether this is the case depends on whether confidentiality clauses regarding remuneration are permitted in employment contracts.
First of all, the principle of private autonomy applies in contracts, and corresponding agreements can be made by contractual agreement.
Freedom of association
Article 9 III GG protects the right of employees to join together in trade unions and works councils in order to represent their interests. The ban on salary discussions can impair employees‘ ability to organize effectively and stand up for their rights.
Principle of equal treatment:
Employees have a right to know whether they are being paid fairly for work of equal value. The prohibition on discussing salaries can lead to employees being unlawfully disadvantaged as they have no opportunity to compare their salaries.
A legal stipulation of the Equal Treatment Act can also be found in §§ 1ff. AGG, according to which, pursuant to Section 2 I No. 2, discrimination on the grounds specified in Section 1 AGG with regard to pay is inadmissible and in Section 75 I BetrVG, as well as since 2017 in the provisions of the Pay Transparency Act (e.g. gender pay gap).
Conclusion:
Due to the freedom of association and the principle of equal treatment, Mr. Fischer does not have to fear dismissal or any other legal consequence.
At the same time, he is not obliged to disclose his salary. Clauses such as those in Mr. Fischer’s employment contract are invalid under Section 307 (1) sentence 1 BGB.
A look at Sweden:
In Sweden, it is possible for anyone to obtain information from the tax authorities about the taxed income of any other Swede – with one exception:
only the King remains secret!
