Judgment of the Federal Social Court of 31 March 2022 in Case No. B 2 U 13/20 R
When a ‘get-to-know-each-other internship’ includes a tour of the company, accident insurance cover can apply through the statute of the employer’s liability insurance association.
Facts of the case
An applicant for a position took a one day, unpaid ‘get-to-know-each-other internship’ with the potential employer. To this end, the applicant and the company concluded a get-to-know-each-other/internship agreement. During the internship, the applicant took part in discussions, especially with the IT department, and went on a site tour, viewing the company’s high-bay warehouse at the end. While viewing the high-bay warehouse, the applicant fell and broke her upper right arm.
Contrary to the defendant (the employer’s liability insurance association) and the lower courts, the Federal Social Court (Bundessozialgericht, BSG) held that this was an accident at work. This was only because, according to its statutes, the employer’s liability insurance association provided accident insurance for persons who toured the company. While the interests of the applicant in getting to know her potential new employer were generally not covered, these interests would not exclude accident insurance coverage in this case according to the statute of the association because the statute did not limit the coverage to persons who were visiting the company solely to tour the site.
Consequences for practice
The welcome judgment of the BSG offers new opportunities for the design of get-to-know-each-other internships. However, each company should check whether its liability insurance association has a similar rule in its statute. This will not always be the case. Without such a rule in the statutes, there will rarely be accident insurance coverage for such internships by operation of law. Insurance protection coverage otherwise only applies in the case of employment within the meaning of § 2 (1) of the Seventh Volume of the Social Code (Sozialgesetzbuch), when the injured person is integrated into an external company and their instructions are subordinate to the instruction issued by the company, in particular with the respect to the time, duration, location and type of performance (see judgment of the BSG of 12 December 2013 in Case No. B 4 AS 87/12 R). The decisive criterion is an action in the interests of another party. In the case of a get-to-know-each-other internship, the applicant’s interests in getting to know their potential employer are paramount. Persons who are primarily acting in their own interests are not automatically covered by accident insurance by law.
Before any get-to-know-each-other internship commences, the applicant and the potential employer should conclude several agreements. Care is required not only considering the stumbling block for accident insurance protection, but also to avoid an obligation to pay the applicant for the internship. Without a contractual agreement, a get-to-know-each-other internship or work placement can give rise to a de facto and thus indefinite employment relationship, which would give the applicant a claim for remuneration for work performed. A real ‘trial work placement,’ is correctly not classified as an employment relationship, and only arises when there is no obligation on the applicant to perform any work and the trial work placement is only designed to grant the applicant the opportunity to get to know the company and their potential position. In this case, the employee is not subject to the right of the potential employer to issue instructions nor does the employer exercise such a right and may not direct any instructions to the applicant. Trial ‘work’ is therefore effectively ruled out. Such a ‘trial work placement’ can only be for a short period to avoid triggering any wage entitlements, in particular any claims for the statutory minimum wage. In addition, applicants should be contractually required to conclude accident insurance at their own cost.
Sonja Müller, Rechtsanwältin and Accredited Specialist for Labour Law with ADVANT Beiten