Emergency Physician in the Ambulance Service: No Necessary Employment Relationship Despite Dependent Employment under Social Security Law

Regional Labour Court (LAG) Mecklenburg-Western Pomerania, order of 21 July 2026 – 5 Ta 22/26

In practice, the terms “employment relationship” (Arbeitsverhältnis) and “employment” within the meaning of social security law (Beschäftigungsverhältnis) are often used synonymously. From a legal perspective, however, these terms are not congruent. An employment relationship is always an employment within the meaning of social security law. The reverse, however, does not apply, which is why constellations are possible in which there is employment subject to social security contributions but no employment relationship. The LAG Mecklenburg-Western Pomerania recently pointed out precisely this discrepancy in its order of 21 July 2026 (5 Ta 22/26).

I. Facts

Since 2019, the claimant had worked as an emergency physician for the defendant, a civil-law partnership (GbR), which had taken over the emergency physician on-call service at the “P-Stadt” site under a contract with the district. She performed an average of eight 24-hour shifts per month at a remuneration of EUR 1,100 each. She was free to determine the number and days of her shifts; there was no written agreement. After the contractual relationship between the defendant and the district ended on 31 December 2025, the defendant, as a purely precautionary measure, terminated “any employment relationship that may exist”. The claimant brought an action for unfair dismissal and relied on the existence of an employment relationship. The defendant objected to the jurisdiction of the labour courts. The Labour Court of Stralsund affirmed jurisdiction, against which the defendant lodged an immediate appeal.

II. Decision

The LAG Mecklenburg-Western Pomerania dismissed the immediate appeal and confirmed the jurisdiction of the labour courts, referring to the existence of a so-called sic-non case. In examining the merits of the appeal, however, the LAG indicated that it did not consider the claimant’s submissions to date sufficient to establish the alleged employment relationship.

The LAG stated that, for the distinction between an employment relationship and a freelance service relationship under Section 611a(1) of the German Civil Code (BGB), the decisive factor is the degree of personal dependence: an employee is a person who performs work that is subject to instructions and determined by others, in personal dependence. The LAG had doubts in this respect in the case of the claimant emergency physician. The claimant was free to determine the number and days of her shifts; there was no obligation to take on specific shifts. According to the LAG, no instructions from the defendant regarding the content of the work had been demonstrated. Furthermore, the need to comply with response times and other requirements arose from the Rescue Services Act of Mecklenburg-Western Pomerania (RDG M-V) and the corresponding Rescue Services Planning Ordinance (RDPVO M-V), not from an employer’s right to issue instructions. Likewise, the use of the ambulance station, the emergency physician vehicle and the cooperation with paramedics were not in themselves an indication of an employment relationship, but were “in the nature of things”.

Of central importance is the second headnote of the order: a possible classification as employment within the meaning of Section 7(1) of Book IV of the German Social Code (SGB IV) does not preclude the assumption of a freelance service relationship, because employment under social security law and an employment relationship are simply not identical.

III. Classification in the Context of Case Law

The decision stands in remarkable tension with the case law of the Federal Social Court (BSG). In its judgment of 19 October 2021 – B 12 R 9/20 R, the BSG ruled that an emergency physician working in the ambulance service as a secondary occupation is generally engaged in employment subject to compulsory insurance. The claimant there – similar to the present case – was employed full-time as a specialist in a hospital and, in addition, performed individual emergency physician shifts on the basis of a “fee agreement”. The BSG affirmed dependent employment, as the emergency physician had been subject to a right to issue instructions and had been integrated into the operational processes in a manner that shaped his activity. The integration was evident in the division of labour within the “rescue chain” – alerting by the control centre, the ambulance station, third-party vehicles, third-party personnel. The BSG expressly emphasised that circumstances which are “in the nature of things” or are dictated by statutory requirements must not be disregarded in the overall assessment.

The divergence of the LAG order from the principles of the BSG lies in its emphasis on the lack of identity between the social security law concept of employment (Section 7(1) SGB IV) and the labour law concept of an employee (Section 611a BGB). Section 7(1) sentence 1 SGB IV defines employment as non-self-employed work, “in particular in an employment relationship” – from which it follows that an employment relationship always constitutes employment, but employment can also exist without an employment relationship.

In practice, this means that the BSG case law, according to which emergency physicians in the ambulance service are generally in dependent employment for social security purposes, does not prejudge the labour law classification of these relationships. The LAG emphasises that an independent examination of personal dependence remains necessary for Section 611a BGB, in which freedom in shift scheduling and the absence of specific instructions as to content may carry more weight than in the social security law assessment.

The LAG’s reasoning corresponds to the more recent line of case law of the Federal Labour Court (BAG). In its order of 3 December 2025 – 9 AZB 18/25 (assistant referee, 3rd football league), the BAG emphasised that rule requirements, training obligations and quality assurance measures do not automatically indicate being bound by instructions under labour law, because freelance service providers may also be subject to the client’s legitimate interest in uniform performance. The BAG also emphasised that the lack of an obligation to accept assignments and assignment-based remuneration speak against an employment relationship – both circumstances that were also present in the LAG’s emergency physician case, but which are less relevant from the perspective of the BSG, which focuses primarily on the performance of the assignments after their acceptance by the emergency physician.

IV. Conclusion and Outlook

The order of the LAG Mecklenburg-Western Pomerania deserves attention because it highlights the different scope of the terms in social security law and labour law using the highly practical example of emergency physician work in the ambulance service. While BSG case law treats dependent employment of emergency physicians in the ambulance service almost as the norm for social security purposes, the LAG Mecklenburg-Western Pomerania shows that the labour law assessment under Section 611a BGB may reach a different result. Decisive are the specific form of personal dependence, in particular freedom in shift planning and the absence of employer instructions regarding the content of the work. The order thus falls in line with the existing case law of the labour courts, which examines pool models with free shift allocation in a differentiated manner and does not adopt the findings of the social courts without scrutiny. The final determination of the claimant’s employee status in the present case remains reserved for the main proceedings.