A summons (Ladung) from the Arbeitsgericht to testify in a colleague’s case puts most employees in an uncomfortable squeeze: the court demands your appearance, the colleague hopes for support, and the employer — who signs your payslip — is the opposing party. The rules are clearer than the anxiety suggests: you must appear and you must tell the truth, and German law shields you while you do it — your employer cannot lawfully instruct, pressure or punish you over truthful testimony. Here is what the summons actually obliges you to do, the narrow situations in which you may refuse, what you are paid, and how the hearing really unfolds.
The duty to appear — and what happens if you don’t
Labor-court proceedings follow the civil-procedure rules (ZPO, applied via § 46 Abs. 2 ArbGG). A properly summoned witness has three duties: appear, testify, and — if the court orders it — take the oath. Ignoring the summons has teeth (§ 380 ZPO): the court imposes the costs caused by your absence and a fine (Ordnungsgeld), and on repeated failure can order that you be brought in (Vorführung).
Legitimate obstacles are handled differently: if you are ill (get a certificate), abroad on the date, or have another compelling conflict, notify the court immediately in writing and ask for the date to be moved. What you must not do is simply stay home.
Can you refuse to testify?
There is no general right for employees to sit out a case involving their employer. The refusal rights are narrow and exhaustive:
- Personal grounds (§ 383 ZPO): you are engaged or married to a party, or closely related to one — plus the classic professional-secrecy holders (clergy, certain professions, media).
- Answer-specific grounds (§ 384 ZPO): you may refuse individual questions whose truthful answer would expose you or a close relative to criminal prosecution, cause you direct financial detriment, or force disclosure of a trade or business secret.
„The defendant is my employer and I fear for my job” is on neither list. You cannot refuse for loyalty, awkwardness or fear — what protects you instead is the retaliation shield below. Where § 384 ZPO genuinely applies, you do not stay silent wholesale: you decline the specific question and state the ground; the court rules on it.
If the employer leans on you
Employers sometimes „prepare” witnesses with a preferred narrative — or worse. The legal position is unambiguous:
- The employer’s right of direction (Weisungsrecht) covers your work, not your testimony. An instruction on what to say in court is void and must be ignored.
- Asking you to testify falsely is incitement to a crime. False unsworn testimony is itself criminal for you (§ 153 StGB), sworn false testimony even more so (§ 154 StGB) — and the person who put you up to it is criminally liable as instigator (§ 26 StGB).
- Refuse such requests plainly, keep any written traces (chat messages, emails), and take advice before the hearing if the pressure continues.
Your shield: the Maßregelungsverbot (§ 612a BGB)
§ 612a BGB forbids the employer from disadvantaging an employee for lawfully exercising their rights — and fulfilling a statutory witness duty truthfully is exactly that. A dismissal, transfer, bonus cut or promotion freeze that follows truthful testimony is challengeable; a dismissal motivated by it is void. Timing evidence carries these cases: keep a dated record of the summons, your testimony date and every adverse measure that follows. If a dismissal does arrive, the three-week deadline applies like always — file the Kündigungsschutzklage and raise § 612a BGB inside it.
What you are paid (JVEG)
Witnesses are compensated under the JVEG — on application, which you make at the hearing or within three months (§ 2 JVEG):
- Lost earnings: up to €25 per hour of lost working time (§ 22 JVEG), plus compensation for time and disadvantages within the statute’s limits.
- Travel: public-transport costs or a per-kilometre rate, plus necessary expenses.
Whether your employer must continue paying salary for the absence depends on your contract — § 616 BGB can cover short unavoidable absences but is frequently contracted away. Practical route: ask HR for paid release citing the summons; if refused, take the JVEG compensation and, where a gap remains, have the arithmetic checked. Your own legal-expenses insurance is not needed just to testify — but it becomes relevant if the aftermath turns into your own dispute.
The hearing, step by step
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Read the summons properly
It names the court, courtroom, date, file number and the topic (Beweisthema) you will be asked about. You only testify on that topic — not your entire work history.
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Inform your employer
You are entitled to attend court; give notice early, in writing, attaching the summons. Do not discuss content — the summons itself is all HR needs.
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Wait outside until called
Witnesses wait outside the courtroom so earlier testimony cannot colour theirs. Bring time and patience — hearings run late.
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Personal details, then the caution
The judge takes your name, age, occupation and relationship to the parties, and instructs you on the duty of truth and the consequences of false testimony. Routine, not suspicion.
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Your account, in your own words
The judge asks you to describe what you know, then asks questions; the parties’ lawyers may follow up. „I don’t remember” and „I don’t know” are legitimate answers — precision beats completeness.
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Compensation before you leave
Ask the clerk (Geschäftsstelle) for the JVEG form, file it with your travel receipts and salary details, and keep copies.
Preparation: do’s and don’ts
- Do refresh your memory from your own materials — calendar, emails you legitimately hold, notes. Dates and sequences are what courts ask about.
- Do raise language issues early: court language is German (§ 184 GVG); tell the court in advance if you need an interpreter, and one will be arranged.
- Don’t rehearse a script with anyone — not the employer’s counsel, not the colleague. Legitimate preparation means knowing your own memory, not memorising a narrative. Coordinated testimony is usually obvious and always damaging.
- Don’t guess. A candid „I can’t say” is worth more than a confident error a document later contradicts.
- Do consider your own counsel (Zeugenbeistand) if the matter touches your own conduct — you may bring a lawyer to the stand, at your own cost.
Worked example
A colleague sues for €9,800 of unpaid overtime; you are summoned on the topic of the team’s actual working hours. The hearing costs you five hours including travel. Your salary works out at €30 per hour, so the JVEG earnings-loss cap applies: 5 × €25 = €125, plus €16 train fare — €141, paid on the form you filed before leaving. You testified truthfully that evening and weekend work was routine and logged.
Three weeks later your employer — visibly displeased — dismisses you „for operational reasons”, though your role is being readvertised. We file the Kündigungsschutzklage within the three-week deadline and plead § 612a BGB retaliation next to the missing operational grounds; the readvertised position and the timeline do the heavy lifting. Outcome at the Gütetermin: six years of service, €5,800 gross per month, settlement at a 0.9 factor — €31,300 severance plus an agreed Grade-2 reference. The testimony cost an afternoon; the retaliation cost the employer a year of salary.
Frequently asked questions
Can my employer refuse me time off for the hearing?
No. A court summons is a public duty; the employer must enable your attendance. Whether the hours are paid depends on § 616 BGB and your contract — the JVEG covers lost earnings up to its cap either way.
I have moved abroad since. Do I have to fly back?
Inform the court immediately. Video testimony (§ 128a ZPO) is increasingly used, and courts weigh proportionality for foreign-resident witnesses. Do not just skip the date — unexcused absence has consequences regardless of distance.
Do I have to attend a „prep meeting” with the employer’s lawyer?
No. You are the court’s witness, not a party’s. You may decline such meetings entirely — and you should decline anything that feels like narrative coaching. A short organisational call about logistics is harmless; a rehearsal is not.
What if the truth hurts my colleague’s case?
You owe the court the truth, not either side a result. Testify accurately and let the chips fall — shading testimony „to help” is the one move that can genuinely ruin you.
What if a truthful answer would incriminate me?
That is § 384 ZPO territory: you may refuse the specific question, stating the ground. If you can see the issue coming — say the case touches practices you were involved in — speak to a lawyer of your own before the hearing rather than deciding at the lectern.