Federal Labour Court (Bundesarbeitsgericht – BAG): Unfounded fixed term after 22 years of pre-employment is admissible

As expected, in a recent ruling (dated 21.08.2019 – 7 AZR 452/17) the BAG allowed an exception to the prohibition of an unfounded fixed term after pre-employment, if there is a very long period between the previous termination and the restart of the employment relationship (in this case 22 years).

In the case decided by the BAG, the employee was employed by the defendant employer as an ancillary employee from October 1991 to November 1992. More than two decades later, the employee was hired again by her former employer without objective grounds for a limited period until June 30, 2015 – this time as a telephone service consultant in the service centre. With her lawsuit, the employee sought a declaratory judgment that her employment relationship would not end due to the fixed term.

The BAG agreed with the employer and decided that the fixed term of the employment contract had been effective without objective grounds. The prohibition of the unfounded fixed term could be unreasonable if, among other things, the pre-employment dates back a very long time.

The cause of the legal dispute was the so called prohibition of pre-employment according to section 14 (2) of the Part-Time and Fixed-Term Contracts Act (Teilzeit- und Befristungsgesetz – TzBfG). Thus, an unfounded fixed-term employment relationship is inadmissible if a (non-)fixed-term employment relationship has already existed with the same employer. The wording of section 14 (2) TzBfG does not provide any indications as to which period is to be understood as “pre”. In the past, the BAG assumed that the employee was not allowed to be employed by the same employer within the last three years. This interpretation was declared unconstitutional by the Federal Constitutional Court (Bundesverfassungsgericht – BVerfGE) last year. According to the BVerfGE, an exception to the prohibition of pre-employment could only be considered if the pre-employment dates back a very long time.

However, the BAG held that the conditions for an exemption from the prohibition of pre-employment had been fulfilled if the pre-employment dates back 22 years.

The press release on the ruling, which is only available so far, does not contain any information as to which period is decisive for the prohibition of pre-employment. However, it is to be expected that the BAG has not committed itself to an absolute time limit. The last sentence of the press release states clearly that special circumstances can justify the application of the prohibition of pre-employment even in case of very long periods between two jobs.

We will inform you here as usual as soon as the grounds of the BAG’s judgement have been published.

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