Temporary employment

The articles Temporary Employment Relationship and Part-Time and Temporary Employment Act overlap thematically. Help me to better differentiate or merge the articles (→ instructions ) . To do this, take part in the relevant redundancy discussion . Please remove this module only after the redundancy has been completely processed and do not forget to include the relevant entry on the redundancy discussion page{{ Done | 1 = ~~~~}}to mark. Björn ( discussion ) 16:52, Aug 13, 2015 (CEST)

In Germany, the fixed-term employment relationship, in contrast to permanent employment, is the agreement that the employment relationship should end on a specific date or with a specific event without notice. In addition to termination, the time limit is an independent termination of an employment relationship. In countries with pronounced employee protection, the fixed-term employment contract is the labor market counterbalance to the permanent employment relationship, which can often only end due to a socially justified dismissal. However, the fixed-term employment relationship is only effective if it is permitted by law (e.g. part-time and fixed-term employment law ). The impermissible time limit is ineffective. The employment contract remains effective and is considered to be concluded for an indefinite period. Temporary jobs are to its expiry not properly terminated, unless the employment contract or the underlying collective agreement is the terminability during the term expressly agreed. The extraordinary termination for cause is always possible.

Basics

written form

The time limit of an employment contract must be in writing to be effective ( Section 14 (4 ) TzBfG ).

Time limit control

The examination of the effectiveness of the fixed-term employment relationship by the labor courts is called fixed-term control; it takes place by bringing an action of the temporary worker to the employer for a declaration that the employment relationship is not finished (so-called. limit following an appeal , § 17 p 1 TzBfG).

Origin: Combating chain employment contracts

The origin of the judicial control of the fixed term was the incompatibility of chain employment contracts with the low protection against dismissal in the second half of the Weimar Republic . An early beneficiary of the case law of the Reich Labor Court was a shorthand teacher who was employed by the Düsseldorf employment office on the basis of 25 successive jobs. This form of time-limit control was continued and further developed by the Federal Labor Court in the young Federal Republic until 1960.

Circumventing the statutory protection against dismissal

In 1960 the Federal Labor Court said goodbye to the control of fixed-term contracts to avoid chain employment contracts. The Dismissal Protection Act came into force and required social justification for every dismissal. The Federal Labor Court declared the time limit to be generally inadmissible because in this way the protection against unjustified dismissals was circumvented and only declared it to be admissible in exceptional cases, namely if there was a special material reason justifying the time limitation of the employment relationship.

Longer term - less mass unemployment?

The corset developed by the Federal Labor Court was felt to be too tight in several ways. First of all, special substantive reasons and exceptional circumstances for universities were created in the University Framework Act in order to preserve their character as training centers . Against the background of sustained mass unemployment , a time-limited, simplified time limit without any particular material reason was introduced by the Employment Promotion Act of 1985. This approach was then considerably expanded again in 1996 and no longer just temporary contracts, but now entire chains of time limits were allowed again. For a short time, therefore, the time limit control was revived from the point of view of avoiding chain employment contracts.

European time limit control

The Directive 1999/70 / EC of 28 June 1999 brought a change in the model of control and limitation was the valid today part-time and temporary employment law transformed into German law. The following principles now apply:

Open-ended employment contracts are the usual form of employment.
Under certain conditions, fixed-term employment relationships are common and useful for both parties.
The national legislators must prevent the abuse of the time limit and make the time limit dependent on objective factual reasons

The abuse is to be further avoided by at least one of the following restrictions:

Establishing substantive reasons for the extension, or
Determination of the maximum duration of fixed-term employment relationships, or
Determination of a maximum number of fixed-term contracts and extensions.

Simply allowing fixed-term employment contracts through a national law is not enough to combat abuse. This would undermine the principle that permanent contracts are the usual form of employment. The factual reason justifying the time limit is not the law that allows it, but specific aspects related to the agreed activity and the circumstances in which it is carried out. The prohibition of converting abusive fixed-term employment relationships into open-ended employment relationships contradicts the directive. The mere fact of an eleven-year, uninterrupted chain with thirteen individual fixed-term contracts does not make a term of representation inadmissible, but it makes special demands on the justification of the fixed-term. On the basis of the aforementioned ECJ ruling, the Federal Labor Court decided on July 18, 2012 in matters 7 AZR 443/09 -Kücük- and 7 AZR 783/10 that, although not automatically, there could be an abusive chain limitation in individual cases. In the Kücük case, the BAG then referred the case back to the LAG Cologne (Az. 4 Sa 877/08) for further clarification. In the other matter, the lawsuit was dismissed.

Fixed-term control in Germany

In order to avoid abuse, the Part-Time and Temporary Employment Act relies on a combination of legally regulated material reasons and the cautious approval of a non-objective time limit for initial employment relationships of generally no more than two years. There is no longer any special control of circumvention of the Employment Protection Act . The consequence of the new doctrine is that simple rules of thumb are dispensed with, there are more time-limit options, but the matter has also become more complicated and more inscrutable.

Exceptions and restrictions to the time limit control

Termination agreements

Agreements aimed at terminating an open-ended employment relationship are not subject to fixed-term control. However, they are subject to the general control of the General Terms and Conditions if a party has provided for the application of contractual conditions with this content for a large number of cases. A termination agreement was adopted in the event that:

that the employer has given notice and
a termination agreement was concluded after the termination and
the employment relationship should end 13 months after the conclusion of the mutually agreed termination agreement and
there should be no obligation to work as a result of "short-time work zero" and
In the termination agreement, further individual provisions on termination were made, namely severance pay, job reference and return of company property.

Limitation of individual working conditions

The time limit control according to the TzBfG does not apply to the limitation of individual working conditions, because the wording speaks of the limitation of the employment contract and thus does not include the limitation of an individual contractual agreement that has certain rights and obligations as its subject.

The temporary increase or decrease in working hours is widespread . However, the limitation of such individual working conditions is subject to content control in the context of the control of general terms and conditions if a party has provided for the limitation of individual working conditions for a large number of cases. It is examined whether the limitation of a working condition unreasonably disadvantages the employee contrary to the requirements of good faith . If there is a material reason for the fixed term, this is a major concern on the part of the employer, but the employee can assert exceptional circumstances that are more important than the interests of the employer.

No control of previous fixed-term contracts

Only the employment contract challenged with a declaratory action is subject to the control of the fixed term . A co-review of previous, unaffected contracts is generally no longer carried out. With the conclusion of a new employment contract, the old employment contract is canceled at the same time. This means that the validity of the term of this canceled contract can no longer be checked. The action against the previous contract is then unfounded. This does not apply if the parties have agreed to review the previous contract in a later contract or if the employer has already been served with a lawsuit against the old contract and a new contract is then concluded.

Types of time limitation - condition

The TzBfG provides a uniform regulation for time limits and conditions. What is wanted can be determined through interpretation. The point of view of the parties must be taken into account. A distinction must be made between the time limit, the purpose limit and the subsequent condition.

Time limitation: with the time limitation the if and when is fixed;
with the purpose limitation only the whether is certain;
in the case of the resolving condition, neither the if nor the when is certain.

So-called "double time limits" are possible - and also widespread. H. the accumulation of time limits and conditions, usually the combination of a time limit with a purpose limitation or condition dissolving. A double time limit is generally permissible and only in exceptional cases is not transparent. "The effectiveness of the fixed-purpose limitation or the condition subsequent and the maximum limitation are to be legally assessed separately. A possible ineffectiveness of the purpose limitation or the subsequent condition has no influence on the time limitation agreed at the same time. It only leads to the fact that the employment relationship does not end due to the possible earlier achievement of the purpose, but continues until the expiry of the maximum period provided. If the employment relationship has been continued up to this point in time, the fixed-term or dissolving condition is irrelevant ”.

effectiveness

Three-week period for legal action

The ineffectiveness of a fixed-term agreement must be asserted within three weeks after the agreed end of the fixed-term employment contract or three weeks after receipt of the notification from the employer that the employment relationship has been terminated due to the limitation (§ 17 sentence 1 TzBfG). If the deadline is not met, the time limit is effective (§ 17 sentence 2 TzBfG in conjunction with § 7 KSchG). However, even an ineffective fixed-term agreement can no longer be contested if the deadline for action is not met; the employment relationship is then concluded for an indefinite period. The only exceptions are in the case of illegal deception and threats .

general requirements

Written form (§ 14 Abs. 4 TzBfG in conjunction with §§ 125, 126 BGB)

Every fixed-term agreement must be made in writing (Section 14 (4) TzBfG). Otherwise it is ineffective. “The provisions of Sections 126, 126a of the German Civil Code (BGB) apply to the statutory written form requirement of Section 14 (4) TzBfG. The written form is maintained if the time limit has been recorded with a personal signature in a uniform document , Section 126 Paragraph 1 and Paragraph 2 BGB ”. "If several identical documents are included in the contract, it is sufficient if each party signs the document intended for the other party (Section 126 (2) sentence 2 BGB)".

Starting work before the conclusion of the contract can lead to the ineffectiveness of the fixed term (not of the employment contract as a whole) due to failure to comply with the written form. A "belated" retention of the written form by the subsequent drafting of a written employment contract does not lead to the effectiveness of the original time limit. Healing the form deficiency would, among other things, contradict the meaning and purpose of the requirement of the written form. A distinction must be made between the cases of subsequent written form in which the employer makes the establishment of an employment relationship dependent on the conclusion of a written fixed-term employment contract for the employee according to the objective recipient horizon. As a rule, this can be assumed if the employer sends the employee a signed contract document before starting work. Then the employee cannot accept the employer's offer of contract implicitly by taking up work. Sending an unsigned employment contract or just an oral declaration that the employment contract should only become effective when a written contract is signed is not sufficient if the employer has already made a job available to the employee and accepts his work. Under certain circumstances, the originally ineffective fixed-term employment contract can, however, be effectively limited by a later written contract. This is the case, for example, if the time limit in the written contract deviates from the one previously agreed orally or if no time limit was originally agreed. In such a case, because of the Vorbeschäftigungsverbots required in the area of concluding fixed-term but a tangible reason. In case of doubt, however, it is the intention of the contracting parties, by drafting a contract in writing, to merely record what has been agreed in writing, but not to conclude a new fixed-term employment contract.

According to § 21 TzBfG, the written form requirement also applies to the agreement of a subsequent condition.

"Section 14 (4) TzBfG ... does not apply if the employment relationship is subject to the terms and conditions of a relevant collective agreement by reference in the employment contract, which provides for a time limit or a dissolving condition."

Ineffectiveness due to a general terms and conditions control (§§ 305 ff. BGB)

A fixed-term agreement can (exceptionally) violate the prohibition of surprising general terms and conditions clauses according to § 305c BGB. This is the case when the employee did not have to expect an (additional) fixed-term agreement due to preliminary negotiations on a partial retirement contract.

A fixed-term agreement can also be ineffective as a non-transparent general terms and conditions clause according to Section 307 (1) sentence 2 BGB. Not every combination of time, purpose limitation or condition is opaque. In individual cases, however, a combination of time limits and conditions that is difficult to understand can be intransparent i. S. d. § 307 para. 1 sentence 2 BGB and thus be ineffective.

Time limit without material reason (§ 14 Abs. 2, 2a, 3 TzBfG)

A time limit is also effective without a material reason - under the more detailed conditions:

in the first two years for new hires (Section 14 (2) TzBfG)
in the case of the establishment of a new company (Section 14 (2a) TzBfG)
in the case of a fixed-term contract for an employee over 52 who was previously unemployed (Section 14 (3) TzBfG).

In practice, the focus is on the unfounded time limit in accordance with Section 14 (2) TzBfG for new hires.

Time limit for new hires (Section 14 (2) TzBfG)

According to § 14 II 1 TzBfG, a time limit without any objective reason is only permissible

(1) up to a total duration of 2 years (§ 14 I 1 Hs. 1 TzBfG)

(2) which may also be achieved by a maximum of three extensions through a calendar-based time limit (§ 14 I 1 Hs. 2 TzBfG),

(3) insofar as it is not deviated from in a collective agreement (§ 14 I 3 TzBfG) or by reference to a relevant collective agreement (§ 14 I 4 TzBfG);

(4) but only if there has not been an employment relationship with the same employer i. S. d. § 14 II 2 TzBfG has passed.

The parties to the employment contract can contractually exclude the possibility of an unfounded time limit. The naming of a material reason in the employment contract alone is usually not sufficient to assume that a corresponding agreement has been made. Rather, additional circumstances must arise in individual cases.

A permanent job can also be filled several times in a row with different temporary employees.

Duration and number of extensions:

Exceeding the time limit and exceeding the number of extensions lead to the ineffectiveness of the time limit for no material reason.

Extension within the meaning of Section 14 Paragraph 1 Sentence 1 TzBfG:

An extension i. S. d. According to the relevant case law of the Federal Labor Court, Section 14 (1) sentence 1 TzBfG requires

(1) that before the expiry of the current contract,

(2) is agreed in writing,

(3) that the contract term of the follow-up contract immediately follows the term of the contract to be extended,

(4) and only the time of termination is postponed and the content of the contract otherwise remains unchanged,

(4a) it is not prejudicial if the parties make declaratory adjustments to the contract text on the occasion of the extension to the legal situation applicable at the time of extension or if they agree on working conditions to which the temporary employee is entitled;

(4b) so that a change in the contractual conditions during the term of the employment contract, which is limited in time for no objective reason - and not during the extension - is harmless.

- The imperative of seamless continuation:

A contract is only extended if its end is postponed during the agreed term. A day in between leads to a new contract and not to an extension.

- The ban on changes:

If more than just postponing the end is agreed, it is a matter of signing a new contract which, as a second contract, violates the prohibition of prior employment and makes the time limit ineffective. If a new weekly working time is agreed during the term of a contract, or a new, higher-quality job without any change in the term, then this is not a separate contract and also not an extension. Even an extension following the agreement is permitted and leaves the time limit in effect if it does not exceed the maximum number or maximum duration. The adaptation of an extension to a new collective bargaining situation is also not a new conclusion of an employment contract, because the changes are only clarifying and are not based on the agreement, but the collective agreement has a direct and mandatory effect on the extension agreement . Otherwise, an ineffective extension initially created an open-ended employment relationship that can be terminated or, if there is a substantive reason according to Section 14 (1) TzBfG, can be subsequently limited again.

Deviating agreements (§ 14 Abs. 1 S. 3, 4 TzBfG):

The number of extensions and the total duration of the fixed term can be extended beyond two years by means of a collective agreement . The churches that do not conclude collective agreements but implement resolutions of a "labor law commission" cannot unilaterally introduce these expansions through a church law , because the EU's fixed-term directive and the TzBfG make deviations to the detriment of the employees dependent on them being on the balanced power balance of the Collective bargaining parties are based. There is no need based on the church's mandate to unilaterally deviate from the two-year maximum limit and from the principle of a maximum of three extensions.

The prohibition of previous employment (Section 14 (1) sentence 2 TzBfG):

In order to avoid chain fixed-term contracts without any objective reasons ( chain contract ), prior employment is prohibited . A fixed-term fixed-term "is not permitted if a fixed-term or open-ended employment relationship has already existed with the same employer" ( Section 14 (2) sentence 2 TzBfG). A breach of this renders the fixed term ineffective and generally leads to an unlimited employment relationship.

The employer:

The same employer is only a natural or legal person who has already been a contractual partner of the employee, i.e. with whom an employment relationship has already existed. The company or the workplace is irrelevant. Another company from the same parent company is not the same employer, nor is an employment company established by the previous employer. An employment relationship is also a previous employment that makes the time limit ineffective if it was not subject to the Employment Protection Act. A student assistant can also be previously employed, because the contract is subject to employment contract law and a specific training purpose is not associated with it. However, the same employer is not the former contractual partner of a contract for work or a training contract . A traditionally structured internship contract is not an employment contract. The doctor in the internship (AiP) is not an employee, not even a scholarship holder of the German Research Foundation, and not even the student or legal trainee . In these cases it is about apprenticeship relationships. No employee is also the “ one-euro jobber ”, he just takes a job with additional expense allowance.

Restriction of the ban on prior employment by the BAG:

However, the Federal Labor Court no longer regards a violation of the prohibition of prior employment as given if there is a period of more than three years between two contracts. According to this decision, it can currently be assumed that there must be at least three years between two time-limited contracts so that the later contract is not viewed as an inadmissible follow-up time limit within the meaning of Section 14 (2) sentence 2 TzBfG. As long as there is no legislative reorientation, the labor court case law will in all probability be based on this judgment.

After a ruling by the Federal Labor Court on January 23, 2019, the case law changed to the effect that an employment contract may not be limited in time under Section 14 (2) sentence 2 TzBfG if there was an employment relationship of around eight years previously between the employee and the employer of one and a half years that had a comparable work task as its subject (Az: 7 AZR 733/16). Previously, this was permissible after more than three years and was changed by a decision of the Federal Constitutional Court on June 6, 2018 (1 BvL 7/14, 1 BvR 1375/14).

Time limit for a new company (Section 14 (2a) TzBfG)

According to the special regulation of Section 14 (2a) TzBfG, a longer time limit of four years is possible when founding a company. In the first four years since the company was founded, multiple extensions are also possible.

Age limitation (§ 14 Abs. 3 TzBfG)

There are two types of age limitation with opposite goals. As a non-objective age limit from a certain age, it is intended for older employees, for whose employment a higher incentive is to be created than the two-year non-objective limitation. As a time limit with the material reason of a certain age in the person of the employee, it is intended for older employees who can draw a pension and are to retire from working life. Both types of age limitation are only permitted insofar as they are compatible with the Limitation Directive 1999/70 / EC and the Equal Treatment Directive 2000/78 / EC.

The principle of equal treatment states that any non-favorable exception to the principle of equal treatment must be justified by a special socio-political purpose. The socio-political purpose should preferably be specified precisely and verbatim in the respective legal regulation, or at least be ascertainable from the context in such a way that the appropriateness of the exception in relation to the intended political purpose can be verified. Individual interests such as saving costs or increasing competitiveness are not recognized socio-political purposes; However, a certain degree of flexibility on the part of employers can be in the general interest. The requirements for proving the appropriateness of the exception are high. The burden of proof is on the Member State. The mere assertion that there is a socio-political purpose and that the exception is necessary and appropriate is not sufficient.

Age limitation for no reason to facilitate reintegration:

The ECJ recognizes that there is indeed an increase in old-age unemployment . It considers it legitimate to combat this phenomenon outside of general unemployment . He further recognizes that older workers' disadvantages under labor law can also provide an incentive to hire. However, the Federal Republic did not succeed in proving that a statutory regulation for the integration of older employees is necessary, which provides for unlimited time limits for employees over 52 years of age. Such a regulation could not be applied and was repealed from May 1, 2007.

The necessity and appropriateness of an unlimited possibility of fixed term from 58 should not be able to be proven.

The current legal text is:

"The calendar-based time limit of an employment contract without the existence of an objective reason is permissible for a period of up to five years if the employee has reached the age of 52 at the start of the fixed-term employment relationship and has been unemployed for at least four months [...] immediately before the start of the fixed-term employment relationship , received transfer short-time work allowance, or took part in a publicly funded employment measure [...]. ”In terms of the legal system, the age limitation with the new version has now moved closer to a limitation with a material reason.

This regulation could also be too broad and leave so many opportunities for abuse open that this exception to the principle of equal treatment of older workers is not justified. On the other hand, there are limitations so that the inappropriateness is not obvious. There is uncertainty.

Age limitation with the material reason age to retire from working life:

A regulation according to which an employment relationship should automatically end at the age of 65 disadvantages older employees, but does not discriminate against them. The regulation serves to ensure full employment by creating new demand and favors the access of younger people to the labor market. In any case, the regulation is not disproportionate if it affects an employee who benefits from an adequate pension.

A collective bargaining agreement, according to which an employment relationship with a flight pilot ends when he reaches the age of 60, is justified because the parties to the collective bargaining agreement are entitled to a generalized regulation and can assume the occurrence of reduced physical performance with a potential risk.

For flight personnel outside the cockpit, there is no assessment by internationally recognized experts that from the age of 60 a physical underperformance with a potential risk occurs. An age limit of 60 not only disadvantages, it also discriminates.

The relationship to the basic fixed term

The agreement of a material reason for a time limit - normally - does not preclude the employer from invoking the admissibility of a non-material time limit in accordance with Section 14 (2) TzBfG in the absence of a material reason.
The time limit without any material reason may also be agreed if there is a material reason. A contract that is limited for a material reason can also be extended up to three times within the two-year period without a material reason if the contract would have been effective without a material reason.
Wrong order: The non-material time limit after the material base time limit is inadmissible because it is no longer a first time limit. The factual fixed term after a non-factual fixed term is not already inadmissible due to the sequence, because there is no prohibition of previous employment for substantive fixed terminations. An exception applies to a previous time limit for testing, since the employer already had the opportunity to check the employee's performance.

Limitations with a material reason

overview

If there is an objective reason for the limitation (so-called basic material limitation of employment relationships), this is also permissible. The law ( § 14 Abs. 1 TzBfG) lists factual reasons. It is limited to the most common examples, which are not exhaustive. A factual reason is then if

the operational need for work is only temporary,
the fixed term follows after training or studying to facilitate the transition of the employee to subsequent employment,
the employee is employed to represent another employee,
the nature of the work justifies the time limit,
the time limit for testing takes place,
reasons inherent in the person of the employee justify the time limit,
the employee is remunerated from budget funds that are budgeted for fixed-term employment and he is employed accordingly or
the time limit is based on a court settlement .

Some reasons for ineffectiveness are shown below.

Temporary work requirement (Section 14 Paragraph 1 Sentence 2 No. 1 TzBfG)

The additional requirement is not precisely defined. Only the additional requirement justifies a time limit, not the fluctuating basic requirement, in which the sustained decrease in the need for employment has to be managed through redundancies for operational reasons . The mere uncertainty about the future workload does not justify a time limit.

The forecast for the elimination of the need for employment is generally made for a large number of employees or organizational units, but not specifically for each individual temporary employee.
The time limit extends beyond the processing of the additional requirement.
The additional requirement is no longer temporary. Five years and more are a constant requirement; the conclusion of an open-ended employment contract is reasonable.
The forecast is made after the contract is concluded and not shortly before the contract is concluded.

In special case constellations of temporary need:

Seasonal work (e.g. open-air theater)

The employee is employed in seasonal operation, but outside of the seasonal area.

Project time limit (e.g. agreed emergency excavations for a construction project)

Arbitrary splitting of a permanent task into individual parts

Departmental research without academic freedom

Model test

In most cases, a model experiment does not justify a time limit because it is expected that at least parts of the model experiment can be continued and therefore no prognosis was possible when the employment contract was signed that the employment requirement would only be temporary. This also applies to the school experiment.

Personnel retention for a specialist that is currently not required

The retention of staff is not a justification for a time limit because there is no need at all, therefore not even a temporary one.

Political auxiliaries of electoral bodies, e.g. B. Fractions

Typist; their work performance does not depend on membership of the party or electoral association

Agreed litigation before first instance judgment

If only met orally: (“Come back for me until the trial of first instance is over”); in the case of a written agreement, the agreed process employment is effective.

Term of representation (Section 14 Paragraph 1 Sentence 2 No. 3 TzBfG)

The reason for the limitation in replacement cases is that the employer is already in a legal relationship with an employee who is temporarily unable to work and expects this employee to return. This means that there is only a temporary need for a representative to perform the activity from the start. It must be ensured that the temporary employee is only employed because of the need for labor that arises from the temporary absence of the employee to be represented. If this connection is missing, the reason for the limitation of the representation does not exist and the limitation is ineffective.

The causality does not exist in the following cases:

The employee is employed longer than the represented person is absent.
The temporary employee is employed more highly than the represented person, or he receives tasks that the represented person could not fulfill due to a lack of previous training.
The employee is employed differently than the person represented.
When it comes to being represented, it is not clear whether he can and wants to return to work at all. This applies in particular if the person represented wants to drop out completely in the event of non-recovery. In this case, it is not possible to predict that the need for the labor will only be temporary.
In the case of indirect representation , the chain of representation is not documented when the contract is concluded and manifested externally (e.g. employment contract, submission to the works council / staff council, entry in the business distribution plan of an authority).
There is no person to be represented. B. only existing positions in the public service are temporarily used.

The same problem also applies to parental leave representation under Section 21 of the Federal Parental Allowance and Parental Leave Act (BEEG).

Time limit due to the nature of the work (Section 14 Paragraph 1 Sentence 2 No. 4)

Association trainer in sports: Only with club trainers does the motivational power decrease so much that a time limit is justified. There is no general sports time limit.

With public employers, the reason for the limitation is usually only in the art and broadcasting sectors.

With decreasing language proficiency, the fixed-term employment contracts of native speakers in university and school service can no longer be justified, because it is recognized that the language proficiency of a native speaker no longer decreases when absent from the country of origin.

Time limit for testing (Section 14 Paragraph 1 Sentence 2 No. 5)

It cannot be shown that the normal trial period is insufficient. In the case of time limits for the extension of the probationary period, it cannot be demonstrated that the employee has actually not proven himself and should still be employed.

Budget limitation (Section 14 Paragraph 1 Sentence 2 No. 7)

The budget limit, which only applies to the public service in the broader sense, comes in two variants:

The time limit due to a temporary need, if a civil servant or salaried position contained in the establishment plan and specifically designated is temporarily vacant, or if the legislature makes use of its right to temporarily make budget funds available for temporary employment. It is unclear to what extent the budget limit is compliant with the guidelines and permissible at all. The judgment of the European Court of Justice is still awaited.

Typical inadmissible budget limits:

The time limit is based on a blanket "no longer applicable in the future" note in the position plan of the budget for several positions without specifying the position individually.

There is a constant and not just temporary need for work performance.

The temporary need exists but is not defined and documented and tailored to the temporary, but rather to a large number of people.

The employee is kept busy with tasks to which the temporary budget is not dedicated.

The temporary budget is set, the purpose is also a temporary one, but the activity-related purpose is not included in the budget at least as a note.

Untitled material reasons (§ 14 Abs. 1 S. 1 TzBfG)

The list of factual reasons for the limitation of employment contracts in § 14 Paragraph 1 Clause 2 No. 1 - 8 TzBfG is not exhaustive. However, other factual reasons can only justify the time limit of employment contracts if they correspond to the evaluation standards expressed in Section 14 (1) TzBfG.

Institutional abuse of law (§ 242 BGB)

A fixed-term agreement, which is actually effective in itself, must also be examined on the basis of the specifications of the ECJ (see above: European time-limit control ) and its implementation by the BAG under the aspect of so-called institutional abuse of law (Section 242 BGB). "High demands must be placed on such a legal abuse, which can only be assumed exceptionally if there is a material reason. All circumstances of the individual case, in particular the total duration and number of consecutive fixed-term contracts concluded with the same employer in the past, must be taken into account. "

The examination of an institutional abuse of law is particularly relevant in the case of temporary representation: "With an increasing number and duration of the temporary employment of an employee, it can represent an abusive exploitation of the limitation option legally open to the employer if he or she has actually worked against an employee who has already been employed for many years The existing possibility of permanent employment always falls back on fixed-term contracts (...). The duration of the individual fixed-term contracts as well as the question of whether and to what extent the agreed fixed-term duration falls short of the expected need for representation must also be taken into account. If a large number of short-term employment relationships are agreed with the same employee in quick succession despite a long-term need for representation that is actually to be expected, the risk of organizational abuse is closer than if the agreed period of time does not lag behind the forecast need for substitution (...). Numerous other aspects can also play a role in the overall assessment. One should think in particular of industry-specific features, such as seasonal operations. Freedoms guaranteed by fundamental rights can also be of considerable importance in the overall assessment. This applies in particular to the freedom of the press guaranteed in Art. 5 Para. 1 GG and the freedom of reporting by radio and film, but also for the freedom of art and science, research and teaching guaranteed in Art. 5 Para. 3 GG. "

The BAG refrains from "more detailed quantitative information on ... where the time and / or numerical limits for abuse lie exactly ... but has given rough guidelines":

If the duration of the chain limitation is not more than 2 years, according to the assessment of Section 14 (2) TzBfG, this is an “unproblematic area under all circumstances”.
If the 2-year period is "exceeded several times", abuse can be "indicated" . "In such a case, however, the employer regularly has the opportunity to refute the assumption of the indicated misuse of design by presenting special circumstances."

So far, the BAG has decided in individual cases as follows:

With a total duration of seven years and nine months with four fixed-term employment relationships and no other circumstances to be brought forward by the employee, the BAG saw no indications of abuse.
In the case of a total duration of more than eleven years and a number of 13 fixed-term contracts as well as constant employment to cover a permanent need for representation, an abuse that can be refuted by the employer is indicated.
With a total duration of 13 years, "an abuse control is initiated in which all the circumstances of the individual case at hand are to be taken into account".

Ban on discrimination for works councils (Section 78 sentence 2 BetrVG)

According to § 78 sentence 2 BetrVG, works council members may not be disadvantaged because of their work.

The fixed-term agreement as such can be ineffective if the works council member is only offered a fixed-term instead of an open-ended employment relationship because of his or her works council activity.
Another question is whether the works council member is denied a follow-up contract in violation of § 78 sentence 2 BetrVG because he is a works council member. From § 78 sentence 2 BetrVG follows - unlike in the case of a disciplinary measure in the sense of § 612a BGB - a claim to a follow-up contract. A graduated burden of presentation and proof applies.

Special features of the purpose limitation

The common form of limitation is the time limitation, if the contract ends at a time specified in the calendar. The fixed-purpose term is less common if the contract is to end when a goal specified in the employment contract is achieved. Since the employer is spared dismissal under the Dismissal Protection Act , the end of the contract must be so clearly defined that the employee can see under which conditions and in what time frame it should occur. The statement: "until the machine is shut down in Hall 9" does not meet this requirement, because otherwise the employer would have the power to terminate the employment relationship at any time and for whatever reason.

The contract ends when the purpose has been achieved and two weeks after the employee has been informed in writing when the purpose has been achieved ( Section 15 (2) TzBfG). It is not sufficient to terminate the employment relationship if only the purpose has been achieved or only the instruction has been given. In the case of severely disabled persons , the integration office must agree to the termination notification beforehand. If the purpose has been achieved and if the employer fails to inform the employee when the purpose will be achieved and if he continues to employ him, the temporary need can no longer be justified with the purpose to be achieved. The factual reason is then only advanced, the time limit is inadmissible and therefore ineffective.

Permanent employment by continuing to work after the end of the term

A fixed-term employment relationship ends with the expiry of the agreed term. If the employment relationship is continued thereafter, it becomes a permanent employment relationship with the previous content ( Section 15 (5) TzBfG). It would also be conceivable to specify a different period by law, or to repeat the previous term again, or to award the employee a higher remuneration. However, the legislature gave preference to a regulation that assumes that the permanent employment relationship should be the usual employment relationship, and that in the continuation of the employment relationship both parties express that they want to continue the employment relationship without a new time limit.

The commencement of a permanent employment relationship is made dependent on several conditions:

Initially, no other agreement may have been made between the parties. The previous employment relationship will not continue if changed working conditions have been agreed or a new fixed-term employment contract with a different or the same fixed-term reason.
The employee must continue his work with the knowledge and willingness to fulfill the previous employment contract. This is not the case if he concludes a contract with a third party, for example with an employment agency or an entrepreneur who uses third-party personnel according to another contract (third-party personnel deployment).
It must be about the continuation of an employment relationship. An activity that is typically performed by freelance workers does not express the will to continue an employment relationship, especially if it has already been expressly agreed between the parties as freelance work.
The continuation must take place immediately after the fixed-term employment contract. It is not sufficient to resume work eleven days after the end of the fixed-term employment contract.
The contractually owed work must actually be carried out; a mere appearance at the workplace combined with the offer of labor is not enough.
The work performance must have been continued with the knowledge of the employer. In the case of non-owner-managed companies, a representative of the employer with labor law authorization must have known about the continued work. As a rule, these are the responsible board members and managing directors.
- The representative of the employer with labor law authorization is also:
  - the administrative director of the Ruhr Area Municipal Association,
  - the rector and the chancellor of a university and expressly authorized employees of the administrative departments, but not deans, chair holders, and directors of university institutes,
  - the head of the school authority and the administrative staff expressly authorized by him, not the rector of a school.
The employer must not have objected to continued work in good time.
- There is an objection if the employer declares that the continued work will not be accepted and that he does not want the employment relationship to be extended.
- No specific form is provided for the objection; it can also be explained orally or expressed in actual behavior. In particular, it can be declared by the employer offering the employee a new fixed-term contract.
- “However, a contradiction already declared in the employment contract would run counter to the unilaterally mandatory effect of Section 22 (1) TzBfG. The legal consequence of the occurrence of fiction, as laid down in Section 15 (5) TzBfG, would be completely waived. The legal consequences arising from any further work cannot be waived from the outset. In order to exclude a circumvention of ( § 22 Abs. 1 TzBfG), a temporal connection with the agreed end of the contract term is necessary (...). Such a connection is to be assumed if the objection is declared at a point in time at which a legal dispute about the effectiveness of the time limit is pending and the employer is defending itself against the lawsuit. "
- The objection must be made immediately. The objection period begins with the knowledge of the employer or his representative of the further work of the employee beyond the contract period. If the representative accepts the work on the erroneous assumption that the contract is still running, this error does not change anything at the beginning of the period. However, the employer still has a period of time to obtain legal advice and to make decisions. However, this period is not 18 days or more. Even the contradiction two weeks after the start of the actual further work is too late.
A declaratory action for the existence of an employment relationship is not bound to a three-week period if it is preceded by a calendar-based employment relationship.

Early termination of the fixed-term employment relationship

A fixed-term employment relationship cannot be terminated during its term, unless the prohibition of termination has been lifted in an individual or collective agreement ( Section 15 (3) TzBfG). If the employment relationship is wrongly terminated, contrary to the ban on dismissal, the three-week period for legal action must still be observed.

In addition, there are the following options for employees to prematurely terminate the fixed-term employment relationship:

Employment contracts that are limited in time for a person's lifetime or for a period longer than five years can be terminated by the employee after five years with a notice period of 6 months ( Section 15 (4) TzBfG).
The employee can give extraordinary notice for an important reason ( Section 626 (1) BGB).
If the time limit is ineffective due to the lack of written form , the employment contract can also be properly terminated before the agreed end ( Section 16 sentence 2 TzBfG).

The delimitation process

Term of action

If an employee wishes to assert that the fixed term of an employment contract is legally ineffective, he must bring an action for an indefinite period of time at the labor court within three weeks of the agreed end of the fixed-term contract to determine that the employment relationship has not ended due to the fixed term ( Section 17 TzBfG). If the employee does not meet the deadline, the labor court only has to admit the lawsuit retrospectively on his application if he was prevented from filing the lawsuit despite all due care. This application is only permitted within two weeks after the obstacle has been removed ( Section 17 TzBfG in conjunction with Section 5 KSchG ). Otherwise the lawsuit will be dismissed.

Scope of action

If the lawsuit only contains the application for an unlimited term of employment, then there is no such thing as a possible right to conclude an employment contract, e.g. B. to decide on the basis of a commitment. If the action is only aimed at establishing the ineffectiveness of a termination, it does not include the extension of the term of the terminated contract. However, several formulated claims can be combined with one another.

Entitlement to continued employment during the process

If, in the course of the appeal, it is established that a time limit is ineffective, the employee has a right to continued employment until the judgment becomes final if he applies for a conviction of this content. Litigation employment is a constitutionally enforced further employment. The employee is only entitled to compensation for the value of the work he has performed, which corresponds to the customary local remuneration, which can be a collective wage. There is no entitlement to vacation, vacation pay, Christmas bonus or continued payment in the event of illness. Even before the ineffectiveness of the fixed term is determined, continued employment can take place on a contractual basis. The continued employment constitutes a material reason for a fixed term. The fixed term is only permitted if it has been agreed in writing.

End of the delimitation process

If the time limit is inadmissible, attacked in a timely manner and is therefore ineffective, a judgment will determine that the employment relationship has not ended as a result of the time limit. The losing party has the opportunity to appeal to the regional labor court.

If the time limit is permissible and effective, the action will be dismissed. The losing party has the opportunity to appeal to the regional labor court.

End of the delimitation process through settlement

The delimitation process can also be ended by comparison. Temporary continued employment or the recognition of termination of the employment relationship against payment of a sum of money is widespread. The fixed-term continued employment agreed in a settlement is recognized as a special material reason and does not require any additional justification, e.g. B. a temporary need. The comparison is no longer subject to any further time limit control. Another complaint would be admissible, but not well founded.

Termination of the extended term process against severance pay

Not only the permanent employment relationship, but also the fixed-term employment relationship can be terminated against payment of a severance payment for the loss of the job, a dismissal compensation.

The dismissal allowance is not subject to the social security contributions for health insurance, pension insurance, unemployment insurance and long-term care insurance, because these are only to be paid from the remuneration for work performed and not to compensate for the loss of future employment prospects. Arrears in wages are subject to social security contributions. The dismissal allowance is subject to income tax. There are no allowances or reduced tax rates. The progressive effect, which can result from the possible accumulation of income through a one-off payment, is mitigated by the five-part rule ( Section 34a (1) sentence 2 EStG ).

Mitigation of tax progression for severance payments

The mitigation only applies to the dismissal compensation and not to wage components that were agreed in the settlement.

There is an accumulation of income if, in the assessment period of the inflow of the dismissal compensation, there is an accumulation of income that exceeds normal circumstances. There is no mitigation for severance payments that do not exceed the lost profit that is expected according to the contractual situation. The aggregation is no longer given if a compensation payment is spread over two or more assessment periods. Dismissal allowances paid too late in breach of the agreement can be withdrawn upon application to the agreed year of the inflow, and the tax assessment for the inflow year, which is already in force, can be changed ( Section 175 (1) sentence 1 no.2 AO ). If an overpaid dismissal compensation has to be repaid, the repayment is the correction of a one-off payment if the tax assessment has not yet become final. If the tax assessment is already final, it is to be changed upon application ( § 175 Abs. 1 Satz 1 Nr. 2 AO). The income tax is assessed as follows according to the five-division rule:

Der Empfänger einer Abfindung erhält monatlich 2.500 € brutto. Im Juli nimmt er seine Entfristungsklage zurück und erhält eine Abfindung von drei Monatsgehältern. Ab Juli erhält er von seinem neuen Arbeitgeber nur noch ein Bruttomonatsgehalt von 2.000 €. Es ist nach folgendem Muster zu rechnen:

Das normale Einkommen beträgt: 7 × 2.500 € =          17.500 €
                               5 × 2.000 € =          10.000 €
Bruttojahreslohn=                                     27.500 €      Einkommensteuer hieraus 5.025 €

Die Abfindung beträgt:         3 × 2.500 € =           7.500 €
Ein Fünftel hieraus sind:                              1.500 €
+ Bruttojahreslohn                                    27.500 €
Bemessungsgrundlage                                   29.000 €      Einkommensteuer hieraus 5.491 €

Die Differenz beträgt                                                                         466 €
Für drei Bruttomonatsgehälter fällt an der dreifache Differenzbetrag 3 × 466 €              1.398 €
Einkommensteuer fällt an mit insgesamt      5.025 € + 1.398 €  =                              6.433 €

Es wären zu versteuern gewesen bei unmittelbarer Addition
von Bruttojahreslohn 27.500 € + Abfindung 7.500 € = 35.000 €, Einkommensteuer hieraus        7.458 €
so dass durch die Fünfteilungsmethode eine Abmilderung der Progression entsteht von         1.025 €

The five-division method must also be taken into account in the wage tax deduction procedure; the employer must determine the expected annual wages without the dismissal compensation. If this approach is not taken, it will be made up for in income taxation upon request. Like income, unemployment benefits must also be taken into account when calculating the tax rate.

Special groups of employees

Public service workers

Time limit

For employees of the federal government and municipalities, special regulations apply to traditional salaried positions in the West tariff area, as well as in the federal states of Baden-Württemberg, Bavaria, Bremen, Hamburg, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Saarland and Schleswig-Holstein. The special regulations do not apply to workers such as drivers, car craftsmen, passenger inspectors, telecommunications mechanics and forest workers.

Substantive basic time limits over five years are not permitted. The employment contract is effective, but the time limit is ineffective.

Fixed-term fixed-term contracts for no reason are mandatory and immediately limited to at least six months, even if a shorter period is specified in the employment contract. The contract should not be less than 12 months. In the case of employment contracts without an objective reason, the first six weeks and, in the case of fixed-term contracts with an objective reason, the first six months apply as a trial period.

Dissolving condition for reduced earning capacity

The collective agreements of the public employers often provide for a subsequent condition for the case of receiving a disability pension. Despite the restrictive interpretation by the BAG, in practice the employee often fails to adhere to the deadline and form to be observed.

A current relevant decision is BAG, judgment of July 23, 2014 - 7 AZR 771/12 - NZA 2014, 1341. In a change in its previous jurisprudence, the period to be observed no longer begins with the receipt of the pension notification, but only “with the receipt the subsequent notification from the employer that the employment relationship ends due to the pension notification ”.

Public service workers in individual federal states

In Baden-Württemberg, Brandenburg and, since mid-2011, also in North Rhine-Westphalia, fixed-term employment contracts are subject to the involvement of the staff council due to the respective state staff representation law . This means that approval for the coveted measure is required. If the employment relationship is limited in time without the consent of the staff council, the employment contract is effective, but the limitation is ineffective. A permanent employment relationship is created. Subsequent approval of the staff council does not cure the ineffectiveness. If a time limit without a material reason or a time limit with a specific material reason fails, the employer cannot invoke a permissible material reason in the subsequent delimitation process because the consent of the staff council has not been given for this material reason. The approval of only the time limit is not sufficient.

The regulation does not apply to the federal authorities in the named states, and it does not apply in other federal states either. The regulation is constitutional and at the time when it came into force it did not conflict with federal law. After the TzBefrG came into force, however, the state could no longer be responsible because the federal government has now comprehensively regulated the right of time limits.

Scientific and artistic staff

With the Science Contract Act, the Guideline 1990/70 / EG of June 28, 1990 for the science sector is implemented.

Scientific and artistic staff with academic training can be employed on a temporary basis for up to six years. This also includes doctors. After a doctorate, regardless of individual exceptions, another time limit of up to six years is permitted, in medicine of nine years. The admissibility of this so-called qualification time limit, also in accordance with the law of the European Union, still depends on the fact that the employee can also dedicate himself to their own scientific (further) qualification within the framework of the assigned tasks. In doing so, it is not absolutely necessary to give the opportunity to do a doctorate or habilitation in order to expand the level of knowledge of the respective discipline or the respective research field through independent research. The temporary employment of scientific and artistic staff aims to qualify the next generation of scientists and artists as well as to secure innovation in research and teaching. A time limit can therefore also be chosen for the employment of academic assistants, insofar as their activities are related to the acquisition of new knowledge. This means that employees with (predominantly) permanent tasks, e.g. B. with a task profile of a teacher for special tasks or a lecturer , because these employees are not scientifically active in the sense of research, but convey the current state of knowledge as well as practical knowledge and skills. Furthermore, the qualification time limit does not apply to university lecturers whose contracts can be limited in accordance with the TzBefrG, i.e. not to junior professors either. Insofar as temporary employment relationships are set up for this group of people, their time limit is usually based on corresponding special legal bases in the higher education laws of the federal states.

In addition to the qualification time limit, the Wissenschaftszeitvertragsgesetz (WissZeitVG) also gives the option of so-called third-party funding , if

the employment is mainly financed from third party funds and
the funding is approved for a specific task and duration, and
the task is not a permanent task of the employing institution, and
the employee is predominantly employed for the intended purpose of these funds.

This basic material limitation also applies to non-academic and non-artistic (so-called accessory) staff. The time limit can only be based on the Science Time Contract Act if it is stated in the employment contract that it is based on this Act. There is a quotation requirement.

The Science Time Contract Act also contains family-friendly components, whereby the period of admissibility is extended by two years per child if one or more children under 18 are cared for.

Scientific employees do have a legal right to an extension of their fixed-term employment contracts (not just an extension of the maximum fixed term) due to maternity or parental leave in the so-called qualification time limit. Here the fixed-term employment relationship is extended “with the consent of the employees”. A corresponding message to the employer is therefore sufficient. However, this does not apply to academic staff with temporary contracts from third-party funds. In the case of the latter, the parents have no general legal right to an extension of a temporary contract as a research assistant for childcare reasons. From different sides, u. a. The Education and Science Union (GEW) is therefore calling for a binding design of the family policy component.

The Science Contract Act also applies to state-recognized private universities and the approx. 750 research institutions described in the 2006 Federal Research Report.

It also applies to doctors in continuing education in the field of universities and research institutions; the law on fixed-term employment contracts with doctors in further training does not apply. At universities in the federal states, the first fixed-term employment contract should not be shorter than two years; the second contract should cover the minimum further training period. The European Court of Justice has not yet clarified to what extent the Science Term Contract Act is compatible with the European Directive on fixed-term contracts. On the other hand, the Federal Labor Court considers the Academic Term Contract Act in its permanent jurisprudence to be in conformity with constitutional and European law.

Doctors in training

According to the law on fixed-term employment contracts with doctors in further training, an employment contract can be concluded for the time necessary to gain recognition as a specialist doctor or to acquire an additional title, but for a maximum of eight years.

For qualifications that can only be acquired after completing the specialist training, another fixed-term employment contract can be concluded for the period prescribed by professional law.

While maximum time limits do not have to be exhausted in other cases, this is the case for doctors in further training: The first time limit must not be less than the period for which the further training doctor is authorized to do further training. The employment of the doctor may not be fragmented during the training authorization. A violation of this regulation does not lead to an extension of the contract term, but to an open-ended employment contract. After the first, limited-term contract that exhausts the further training authorization, a further contract that falls short of the further training authorization can be concluded if it could be assumed that the further training can be ended within the agreed contract period. The maximum period of validity of eight years must not be exceeded, otherwise the time limit is ineffective.

Employment contracts with doctors in further training cannot be limited in time for no objective reasons, because the duration of the non-objective limitation is a maximum of two years. After completing the advanced training, basic fixed-term contracts are possible.

The law does not apply to dentists and veterinarians. It also does not apply to doctors in further training at universities and research institutions; the Science Term Contract Act applies to them.

Program creator in radio and television

The desire of the audience for variety corresponds to the requirement of diversity for the broadcasters, which is an essential characteristic of the design of radio and television programs. The freedom of reporting by radio and film is constitutionally guaranteed. Art and science are free ( Article 5, Paragraph 1, Clause 2 and Paragraph 2, Clause 1 of the Basic Law ). This also applies to private broadcasters and producers of entire program parts for television broadcasters, also for inserted window programs. It is recognized that changes in the subject matter of the report, program techniques, competitive situations and the needs of the public make it necessary to change program structures, and that, as a rule, it cannot be expected that the employees who have been responsible for program design in the past are sufficiently qualified to also work in the changed program structures . The peculiarity of the activity of program-designing employees can therefore justify the fixed term of the employment relationship ( Section 14 (1) sentence 2 no. 4 TzBfG). The other reasons for the limitation, such as the limitation of representation or the project limitation, are just as little excluded as the limitation without any objective reasons.

Separating from freelancers is sometimes easier. Whether an employee is an employee or a freelancer depends not only on the task at hand, but also on the form of organization in the broadcasting company and the individual contract design. A news anchor can be employed as a freelancer, and as an employee. No employee is a journalistic researcher who is not bound by instructions for interesting life stories, even if he has to proceed according to a certain pattern.

Program-creating employees as employees

Civil law also decides on the type of employment relationship with program-designing employees. The use of the freedom to broadcast does not mean that every contractual relationship with a program-designing employee must be treated like a freelance work relationship. Fixed-term employment relationships are not generally unsuitable for ensuring that reporting is up-to-date and flexible in factual and legal terms. The question of the suitability of fixed-term employment relationships cannot be answered abstractly, but only on the basis of the specific journalistic task of the respective employee. In the case of editorial work that relates to several programs or series of programs, a temporary employment relationship can also meet the need to change staff. An employee is someone who is personally dependent and is obliged to work according to instructions and is no longer essentially free to organize his activities and determine his working hours. An editorial staff member on an evening news program who must start work at 2:00 p.m. is an employee. His fixed-term employment is subject to fixed-term control.

No broadcast time limit for other employees

The peculiarity of the work performance only justifies the limitation of the employment relationship of program-designing employees. Only those who typically contribute their own views on political, economic, artistic or other issues, their specialist knowledge and information or their individual artistic ability and expressiveness to the program are responsible for designing the program. This is particularly the case with editors, directors, moderators, commentators, scientists and artists. Editors typically act in the design of the program, as they have direct influence on the content of the program by selecting the contributions to be procured and by writing their own contributions. A cameraman also works to create the program if he contributes to the program by selecting the images and motifs.

The operational and administrative staff and those who participate in the implementation of the program, but have no influence on it, do not belong to the staff who create the program. Activities that do not design the program can also include, depending on the circumstances of the individual case, pure speaking services.

The employment relationships of these employees can only be limited in accordance with the general rules on fixed-term contracts and not to guarantee freedom of broadcasting, because freedom of broadcasting does not include the general interest of the operator in saving costs and reducing the termination costs of employment relationships.

Weighing freedom of broadcasting against interest in permanent employment

The fixed-term employment relationship with a program-designing employee is only effective if freedom of broadcasting and the employee's right to a permanent employment relationship recognized as customary have been weighed against each other in a specific individual case. When weighing up, it must be taken into account to what extent the employee concerned can influence the program of the radio or television company and how great the risk is that the radio company will no longer meet the requirements of a diverse program and the changing information needs and interests of the public if it has to employ the employee on a permanent basis. The time limit is justified if it is necessary so that the broadcaster can freely determine the recruitment, selection and employment of its program-designing staff. However, long-term employment can be an indication that there is no program-related need for a change in personnel.

Stage members

admissibility

The EU Temporary Employment Guideline, the TzBfG and, as a collective agreement, the normal stage contract of January 1, 2003 apply to stage fixed-term contracts. Fixed-term employment contracts are permissible because the stages have to respond to the audience's need for variety with a diverse program. This diversity requires constantly changing staff who meet the respective requirements. This includes artists, actors, singers, dancers and band masters, choreographers, dramaturges and head make-up artists; However, musicians only if they are not employed in cultural orchestras such as operas and concert halls.

Possibility of time limitation in individual cases

Dance group members

In the opinion of the Federal Labor Court, a fixed term of an employment relationship with a dance group member is also unrestrictedly permissible, because the individual appearance and dance expressiveness of each individual member is decisive for the overall impression of the dance group.

However, this is controversial because a member of a dance group is not subject to the same need for variety as a soloist or the leader of a dance group.

Chorister

The choir singer is not subject to the same need for variety as a soloist. The employment relationship can therefore only be terminated if a specific artistic concern speaks against further engagement.

Stage technician

The employment relationship of a stage technician can only be limited in time if his activity affects the artistic concept, he realizes the artistic ideas of the artistic director and the activity is subject to the audience's need for variety.

Wage earners

The factual reason for the stage limitation no longer applies to commercial employees, because their work is not subject to the audience's need for variety. The temporary additional requirement can, however, be based on a generally legally recognized limitation reason if z. B. the need only exists seasonally like an open-air theater. Before the time limit guideline and the TzBfG came into force, traditional stage usage was recognized as a special material reason for a time limit even for cloakroom attendants and ushers .

Duration of the contract

Notification of non-renewal

Stage employment contracts are regularly concluded for one season. The season begins on August 1st and ends on July 31st of the following year. A contract concluded for at least one season is extended under the same conditions. It ends on July 31 of the following year if one contracting party notifies the other in writing by October 31, at least nine months in advance, that it does not intend to continue the employment relationship (notification of non-renewal). This regulation applies to solo members, stage technicians, and dance group members. At the end of the first quarter of the current season, it is clear whether the contract will be extended for another season or not. The non-renewal notification only has the same effect as a notice of termination, but is not because the employment contract ends with the previously agreed deadline. It can therefore also be pronounced during pregnancy. If the non-extension is to be pronounced after the seventh full season, it must be received in writing by the stage member by July 31st. If the non-renewal is to be pronounced after the fourteenth full season, the employer can only express the non-renewal notification in order to continue the employment relationship under different contractual conditions.

Consultation before non-renewal notification

The employer must hear the stage member before issuing a non-renewal notice. If the employer fails to hear the stage member in good time, the notification of non-extension is ineffective. The hearing on your part is only effective if the employer first explains to the employee what reasons are relevant for the intended non-renewal. The employee must then be given the opportunity to explain why he is able to meet the artistic requirements or why the non-renewal is a social hardship for him and how it can be alleviated. A hearing is not a one-part process, but a multi-part process that enables the respective contact person to do more than a “yes” or “no”, namely a substantiated answer. The employer has given the reasons for the non-renewal notification in a concrete and comprehensible manner, if z. B. a dancer is able to show that he meets the requirements that the new ballet director makes on the members of the dance group. It is not enough to simply tell the stage member that the artistic director has had negative impressions on questions of acting and directing, the general music director on questions of musical performance and the theater board members on questions of collegiality and cooperation. "Impressions gained" without giving further details are not personal, specific and understandable reasons for an intended non-renewal. Special rules apply to opera choir members.

Notification of non-renewal due to change of director, severance payment

If a non-renewal notification is based on a change of artistic director, the stage member receives a severance payment if the non-renewal notification is made so early that the stage member is no longer employed in the first season after the change of artistic director, and he does not find a new engagement within three months. After four seasons, the severance payment amounts to three months' compensation. Even in the case of a change of artistic director, the stage member must be heard and they can claim that they are up to the demands of the new artistic director. If the artistic director takes over the management of the theater at the beginning of a season, this season is the first season after the change of artistic director. The change of director is not a period of time, but the point in time at which the new director replaces the previous director and the artistic management of the theater is transferred to the new director.

Power of attorney to give notice of non-renewal

So that all employment relationships with stage members can be terminated at the beginning of a new artistic direction, it is possible to oblige the artistic director one and a half years before taking over the artistic direction of the theater and to give him the necessary powers. The designated director is then able to give stage members who have been employed for more than eight years notifications of non-renewal in good time so that they will no longer be employed in the first season under his artistic direction. This option does not exist in the event of a short-term change of director. The regular written power of attorney for the designated director can also be replaced by the fact that he is presented to the stage members at a works meeting, the outgoing director attends the works meeting, and personnel, an office and other material resources are clearly made available to the designated director. The function of the designated director is to be assessed similarly to the position of a human resources manager in a company, where the power of attorney results from the position.

Legal process

You can take legal action against the non-renewal notification until February or November after the deadline for the non-renewal notification has expired.

Taxation of the severance payment

The severance payment after issuing a non-renewal notification seldom leads to an accumulation of income according to Section 34 (2) i. V. m. Section 24 no. 1a EStG, as it is only granted if the income ceases to exist for three months or more. A larger severance payment can be subject to the five-division rule, as it is intended to compensate for lost income, even if it is not a dismissal compensation. The termination of the employment relationship is based exclusively on the passage of time and the earlier agreement that the employment contract should be limited in time. The employer's behavior does not end the employment contract. The notification of non-renewal only confirms that the agreed term of the contract will be adhered to and that the employment relationship will not be continued beyond the agreed time.

Unemployment after termination of the fixed-term employment relationship

Blocking period due to change to a fixed-term employment relationship

If unemployment occurs after the termination of the fixed-term employment relationship, there is a fundamental right to unemployment benefit. Even if the employee has given up a permanent employment relationship and subsequently concluded a fixed-term employment contract, thereby contributing to unemployment when the fixed-term contract expires, he does not always behave in such a way contrary to insurance that a blocking period must be imposed. On the one hand, the employee must continue a reasonable employment relationship in order to avoid unemployment ( Section 2 (5) No. 1 SGB III ), but on the other hand it can also be justified to give up a permanent employment relationship in order to switch to a temporary employment relationship.

The change is justified

if the seamless start of temporary employment is connected with a change to another professional field and the associated acquisition of additional professional skills,
if the change to the fixed-term employment relationship is associated with a wage increase. It is irrelevant how high the increase in the hourly wage is if it is not a trivial amount,
if a higher-level activity is associated with it, e.g. B. Accountants instead of office help,

However, the employee may not face the risk of unemployment and thus consciously bring about the insured event. This is the case

if there is no concrete prospect of an extension of the employment relationship,
or the prospect of an extension is completely open and the agreed period of employment is only six weeks,
or the wage is the same or lower and no expansion of professional skills was to be expected with the change to the temporary employment relationship,

There is no material causality between the termination of a permanent employment relationship and the onset of unemployment if the subsequent fixed-term employment relationship is not extended after six months due to a poor order situation. In this case, no blocking period may be imposed.

Report as jobseeker

The employee is obliged to report personally to the employment agency at least three months before the end of the fixed-term employment relationship ( Section 38 (1) sentence 1 SGB III).

The employer must inform the employee of this at an early stage ( Section 2, Paragraph 2, Clause 2, No. 3 SGB III).

If the employee does not register as unemployed in good time, there is a blocking period of one week ( Section 159, Paragraph 6 ^{[provider / database unknown],} Paragraph 1, Sentence 2, No. 7, SGB III).

If the employer fails to indicate the obligation to register as a jobseeker at an early stage, he is still not obliged to compensate for the damage caused by the employee registering too late and imposing a blocking period. The obligation to provide information only has a supportive effect and does not justify the employer's asset care obligation.

Non-discrimination

The general prohibitions of discrimination under labor law apply to fixed-term employment, for example the EU Equal Treatment Directive for women and men (Directive 2006/54 / EC of July 5, 2006) and the Directive on the application of the principle of equal treatment regardless of race or ethnic origin (Directive 2006 / 43 / EC of June 29, 2006) and the directive for the implementation of equal treatment in employment and occupation (RL 2000/78 / EC of November 27, 2000). These guidelines are implemented by the General Equal Treatment Act of August 14, 2006.

In addition, the special protection against discrimination for fixed-term employees applies (Section 4 of the framework agreement on Directive 1999/70 / EC), which has been implemented by the TzBfG from 2001.

Content of the special prohibition of discrimination under temporary law

Fixed-term employees may not be treated worse than comparable permanent employees in their terms of employment because they are temporarily employed. The principle applies that wages and benefits granted for a certain period of time should also be granted to temporary employees on a pro rata basis ( pro rata temporis principle ), Section 4 No. 2 of the Framework Agreement on Directive 99/70 / EG (implemented in Section 4 Paragraph 1 Sentence 2 TzBfG). Collective agreements cannot ignore this.

If an employer introduces a new wage system on the basis of a collective agreement and compensates for wage reductions, he must also grant the compensation to a fixed-term employee, because a fixed-term employee is affected by the wage reduction in the same way as a permanent employee and his employment relationship enjoys no less content protection than that of a permanent employee.

Bonuses such as the Christmas bonus are also a service for the past and must be paid out to fixed-term employees proportionally according to the length of their service with the company. This also applies if the gratuity is described as a voluntary service.

Inferior treatments not recorded

Not all inferior treatment is covered by the temporary law prohibition of discrimination: There is no prohibited inferior treatment when an employer employs teachers for a limited period from the end of the school summer break until the beginning of the next school summer break. The temporary teacher is worse off than a permanently employed teacher because he does not receive any pay for the school summer holidays. However, the prohibition of discrimination does not affect the right of an employer to conclude a fixed-term contract and to determine the duration himself. The BAG comes to the same conclusion, albeit with a different justification.

The employer is also free not to extend an employment contract that is limited in time for no objective reason if he extends several employment contracts concluded at the same time for a group of the same employees. The non-objective time limit gives the employer the opportunity to part with an employee without an objective reason and thereby creates an incentive to hire a new employee. An extension requirement would not be compatible with this basic idea.

Inferior treatments not recorded in time

The prohibition of discrimination also does not include inferior positions due to the fact that periods of temporary employment before 2001 in the company pension scheme are not taken into account, because the TzBfG does not have retroactive effects and the situation is before the TzBfG came into force and has been concluded.

Allowed worse treatments

A company pension plan is to be granted equally to all employees. The exclusion of retirement benefits cannot be offset by a higher payment, because the direct performance-related fees are not comparable with retirement benefits.

The exclusion of employees from the company pension scheme is effective if it is based on a reasonable, objective reason. A reasonable objective reason can be found in the purpose of the service. With commitments to a company pension scheme, loyalty to the company is to be regularly promoted and the employee is to be bound to the company (rewarding pension scheme). As a rule, this interest does not apply to temporary employees. The disadvantage of temporary employees compared to permanent employees is therefore permitted.

This applies in particular to ABM workers with one-year fixed-term contracts.

Case law on portable retirement provision that supplements statutory retirement provision is not yet available.

Share of temporary employment in the labor market

Fixed-term employees in absolute numbers in March 2004

Arbeitnehmer insgesamt       davon befristet           davon Schüler und Studenten
            29 822 000             2 478 000                               271 000

Share of temporary employees by industry in Germany in 2005

Land- und Forstwirtschaft, Fischerei                            14 %
Öffentliche Verwaltung                                          12 %
Dienstleistungsbereich                                          12 %
Grundstückswesen, Vermietung, wirtschaftliche Dienstleistungen  10 %
Handel und Gastgewerbe                                           8 %
Bergbau und verarbeitendes Gewerbe                               6 %
Baugewerbe                                                       6 %
Verkehr und Telekommunikation                                    6 %
Energie- und Wasserversorgung                                    4 %
Kredit- und Versicherungsgewerbe                                 3 %

Share of temporary employees in% of all employees by age group

                                         1995           2002              2006
15 – 20                                31,5 %           37 %            80,3 %
20 – 25                                20,9 %           27 %            48,3 %
25 – 30                                10,2 %           14 %            21,7 %
30 – 35                                 7,3 %            8 %            11,7 %
35 – 40 und älter                       <10 %          <10 %             <10 %

Proportion of women and men with temporary employment in total employment in selected European territorial states in 2012

                                      Männer                 Frauen
Spanien                                6,5 %                 24,4 %
Italien                                6,7 %                 31,0 %
Frankreich                             6,4 %                 30,0 %
Deutschland                            9,1 %                 45,0 %
Vereinigtes Königreich                11,5 %                 42,3 %

Fixed-term employment and labor market

function

It cannot be verified that more new jobs have been created due to the increased admission of fixed-term employment relationships since 1985. In the years 1997 to 2003, 33.3% of the first-time contracts for newcomers in the old federal states and 45.2% in the new federal states were limited in time. The fixed-term employment relationship thus became a standard access to the labor market. 48.6% of the fixed-term contracts in the old states and 44.7% in the new states had a material reason. More jobs were created and more jobs cut due to the possibility of fixed-term contracts. So they served rather the pro-cyclical job creation and reduction in line with the need for workers. But there was no regular departure of the workforce after two years, the maximum duration of the fixed-term fixed-term. This is an indication, but not clear evidence, that the unfounded fixed term was used as an extended trial employment relationship. The feared revolving door effect, i.e. the rotation of workers just to avoid dismissal protection, did not occur in Germany (unlike in Spain). A culture of “hiring and firing” has therefore not developed.

Particularities in the status of temporary workers

Fixed-term jobs were offered more in lower and higher qualifications than in middle-class. Women with a university degree were more likely to be offered fixed-term employment than women with vocational training. There is a tendency to pay lower wages to fixed-term workers, to exclude them from bonus payments and to withhold non-wage components from them that are granted to permanent workers. It remains to be seen whether the bans on discrimination will counteract this.

Status changes

In the old federal states 17.18% of the fixed-term contracts were converted into open-ended contracts between 1997 and 2003, in the new federal states 8.10%. At the European level, applications were significantly more successful than applications from unemployment three years after taking up temporary employment. Of those who entered into non-standard employment in 1997, 60% had a standard employment contract in 2003, 16% had a non-standard employment contract again, and 20% were unemployed. Women, the elderly and the young had a smaller share in the improvements in status on the labor market.

History of ideas of the law of limitation

Roman law

The writer, lawyer and top civil servant Ulpian reports on the temporary employment of a wage clerk. He takes it for granted that the heirs of his employer will not be able to terminate his contract, which is limited to one year, if he dies during the agreed year and there is therefore nothing left to write. (222 AD)

General land law for the Prussian states

The service contract between master craftsman and journeyman is a permanent employment contract. If the master wants to "abolish" his journeyman, he must announce this to him fourteen days in advance. The journeyman has to “say” to the master a fortnight before leaving. (1794)

Civil Code

The German Civil Code (BGB) is based on the fixed-term employment contract as the first basic form of employment. The employment relationship ends with the expiry of the period for which it was received ( Section 620 (1) BGB).

Start of dismissal protection

With the Employee Dismissal Protection Act, for the first time, notice periods that are graded according to the duration of the employment relationship and that extend beyond a basic period are introduced (1926).

Effect on the right of time limitation

The Reich Labor Court declares a chain employment contract inadmissible if it was enforced with the intention of circumventing mandatory dismissal protection regulations (1938).

The heyday of employment protection law

A notice of termination is only permissible if it is prompted by compelling reasons in the person of the employee or by the elimination of the need for employment (1951).

Repeated action on the right of time limitation

The Federal Labor Court makes the effectiveness of a time limit dependent on a factual reason for it in the range of an interest worthy of protection. The intention to bypass is no longer important. This strong protection is to be maintained for 25 years. There will not be stronger protection again (1960).

Combating mass unemployment

In order to combat mass unemployment, the simplified time limit is introduced for no objective reason as an incentive to increase employment. (1985)

Europeanization and harmonization

The Council of the European Communities also recognizes the fixed-term employment relationship and at the same time instructs the member states to protect the preferred permanent employment relationship against abuse through repeated fixed-term contracts by law or other measures. (1999) The guideline does not restrict initial fixed-term contracts.

Mediating solution

The Part-Time and Temporary Employment Act builds on the tradition of making the time limit dependent on material reasons, allows time limits without material reasons, mainly as entry time limits and bridges into the labor market, and effectively limits the extension of the employment contract with no objectively reason (2001).

outlook

The prohibition of prior employment in the case of fixed-term fixed-term contracts no longer applies absolutely; it only covers employment relationships that ended less than three years before the conclusion of a contract with a fixed term for no reason. It is not yet known whether this decision will be reviewed by the ECJ to determine whether it complies with the European Directive on Fixed Limits, which stipulates the establishment of a maximum number of contracts for fixed fixed-term contracts. A ruling by the European Court of Justice on the admissibility of the budget limitation is still awaited.

Web links

Website of the Federal Labor Court : decisions / document search The decisions have been discontinued since 2010.
Klaus Tenbrock: Time limit ( Memento from May 6, 2008 in the Internet Archive )
Fixed-term employment - precarious or stepping stone? Information platform of the Institute for Employment Research

literature

Collections of laws

Labor Laws , Munich 74th edition 2009.
EU labor law , Munich 3rd edition 2008.

Monographs

Hans-Jürgen Dörner , The fixed-term employment contract , 2. neubearb. Edition, Munich 2011. ISBN 978-3-406-55680-7
Gregor Thüsing, European Labor Law , Munich 2008.
Sven Persch: Core questions of the law of fixed term. The labor law control of time limits between freedom of contract and grandfathering . Publishing house Dr. Kovac, Hamburg 2010, ISBN 978-3-8300-4680-6 .

Comments

Boecken / Joussen, Part-time and Temporary Employment Act , Handkommentar, 2nd edition, Baden-Baden 2010.

Journal articles

Jobst-Hubertus Bauer , Tückisches Befristungsrecht, NZA 2011 , p. 241 ff.

Wiebke Brose, The BAG case law on Section 14 Paragraph 1 No. 3 TzBfG - A case for the ECJ , NZA 2009, 706 ff.

Hans-Jürgen Dörner , News from the law of limitation , NZA 2007, 57 ff.

Hans Friedrich Eisemann, fixed-term and virtual permanent representation , NZA 2009, 1113 ff.

Ralph Hirdina, fixed-term research assistant, unconstitutional and contrary to European law! , NZA 2009, 712 ff.

Michael Kossens, Current case law on the right of time limitation according to the TzBfG , NZA-RR 09, 233 ff.

Michael Kuhnke: Fixed-term employment contracts for 'previous employment' without any material reason (at the same time to BAG, judgment of April 6, 2011, NZA 2011, 905 = NJW 2011, 2750 L.), NJW 43/2011, 3131

Thomas Lakies: Limitations for representation in the public service ; The staff council 2012, 59 ff

Ulrich Preis , Flexibility and Rigor in Time Limitation Law , NZA 2007, 714ff.

Individual evidence

↑ Dörner: The fixed-term employment contract , p. 2 ff.

↑ ^a ^b ^c BAG, decision of October 12, 1960, Az. GS 1/59.

↑ BAG, judgment of June 28, 2006 , Az. 7 AZR 100/99, BAGE 95, 165 = MDR 2001, 221 = NZA 2000, 1160.

↑ ^a ^b RL 1999/70 / EG of June 28, 1999 together with the appendix (PDF)

↑ ECJ, judgment of July 4, 2006 , Az. C-212/04, NJW 2006, 2465 = ZIP 2006, 2141 = FamRZ 2006, 1350 (Ls.) = DVBl 2006, 123 = NVwZ 2006, 1156 = NZA 2006, 909

↑ ECJ, judgment of January 26, 2012 , Az. C-586/10 -Kücük-; (reprinted inter alia in NJW 2012, 989) in response to a request for a preliminary ruling from the BAG, Az. 7 AZR 443/09.

↑ Thomas Drosdeck / Christian Bitsch, Admissibility of chain time limits (also on ECJ of January 26, 2012, NJW 2012, 989) , NJW 2012, 977.

↑ BAG, press release No. 54/2012 of June 19, 2012, Az. 7 AZR 443/09 and Az. 7 AZR 783/10

↑ BAG, judgment of February 15, 2007, Az. 6 AZR 286/06.

^ BAG, judgment of September 3, 2003 , Az. 7 AZR 106/03; BAGE 107, 237 = NJW 2004, 112 = MDR 2004, 456 = DB 2004, 490 = BB 2004, 498 = NZA 2004, 255.

↑ BAG, judgment of June 18, 2008 , Az. 7 AZR 245/07, full text.

^ BAG, judgment of March 21, 1990, Az. 7 AZR 286/89.

↑ BAG, judgment of June 4, 2003, Az. 7 AZR 532/02.

↑ BAG, judgment of March 10, 2004 , Az. 7 AZR 218/04, BAGE 112, 187 = NJW 2005, 922 = BB 2005, 1279 = NZA 2005, 401 = DB 2005, 451.

↑ BAG, judgment of 19.01.2005 - 7 AZR 250/04 - NZA 2005, 873 (874) with further references; see. Hamann, JA 2002, 596 f.

↑ BAG, judgment of 04.05.2011 - 7 AZR 252/10 - Rn. 46; BAG, judgment of June 29, 2011 - 7 AZR 6/10 - NJW 2011, 3675

↑ BAG, judgment of July 26, 2007, Az. 7 AZR 494/05.

↑ ^a ^b BAG, judgment of 23.07.2014 - 7 AZR 771/12 - juris Rn. 28 = NZA 2014, 1341

↑ BAG, judgment of 08/20/2014 - 7 AZR 924/12 - juris Rn. 23 = NZA 2015, 64 red. Ls. = NZA-RR 2015, 9

↑ BAG, judgment of March 16, 2005 - 7 AZR 289/04 - Rn. 14, juris = NZA 2005, 923.

↑ BAG, judgment of December 14, 2016 - 7 AZR 797/14 - Rn. 38, juris = NZA 2017, 638.

↑ BAG, judgment of December 14, 2016 - 7 AZR 797/14 - Rn. 38 ff., Juris = NZA 2017, 638; BAG, judgment of February 15, 2017 - 7 AZR 223/15 - Rn. 32, juris = NZA 2017, 908.

↑ BAG, judgment of February 15, 2017 - 7 AZR 223/15 - Rn. 39 f., Juris = NZA 2017, 908.

↑ BAG, judgment of March 16, 2005 - 7 AZR 289/04 - Rn. 22, juris = NZA 2005, 923.

↑ BAG, judgment of February 15, 2017 - 7 AZR 223/15 - Rn. 38, juris = NZA 2017, 908.

↑ BAG, judgment of July 23, 2014 - 7 AZR 771/12 - juris Rn. 35 = NZA 2014, 1341

↑ ^a ^b BAG, judgment of 08.08.2007 - 7 AZR 605/06 - DB 2008, 133

↑ BAG. Judgment of 08.08.2007 - 7 AZR 605/06 - Rn. 35 f. = DB 2008, 133

↑ BAG, judgment of 16.01.2008 - 7 AZR 603/06 - NZA 2008, 701; BAG, judgment of 20.02.2008 - 7 AZR 786/06 - NZA 2008, 883 = EzA § 14 TzBfG No. 46; BAG, judgment of 04.12.2003 - 7 AZR 468/12 - NZA 2014, 623

↑ See BAG, judgment of June 29, 2011 - 7 AZR 774/09 - NZA 2011, 1151

^ Sächsisches Landesarbeitsgericht, judgment of April 19, 2011, Az. 7 Sa 499/10, NZA-RR 2011, 402.

↑ BAG, judgment of February 28, 2008, Az. 7 AZR 786/06.

↑ BAG, judgment of February 20, 2008 - 7 AZR 786/06 - NZA 2008, 883 = EzA § 14 TzBfG No. 46; BAG, judgment of January 16, 2008 - 7 AZR 603/06 - NZA 2008, 701; BAG, judgment of 04.12.2003 - 7 AZR 468/12 - NZA 2014, 623

↑ BAG, judgment of February 5, 2002, Az. 7 AZR 483/99.

↑ BAG, judgment of January 18, 2006, Az. 7 AZR 178/05.

↑ LAG Rhineland-Palatinate, judgment of November 5, 2010, Az. 9 Sa 211/10.

^ BAG, judgment of 25 May 2005, Az. 7 AZR 286/04.

↑ BAG, judgment of April 16, 2008, Az. 7 AZR 1048/06.

^ BAG, judgment of March 25, 2009, Az. 7 AZR 710/07.

^ BAG, judgment of July 16, 2008, Az. 7 AZR 278/07.

↑ BAG, judgment of February 9, 2011, Az. 7 AZR 32/10.

^ BAG, judgment of March 9, 2011, Az. 7 AZR 657/09.

^ BAG, judgment of November 6, 2003, Az. 2 AZR 690/02.

^ Sächsisches LAG, judgment of October 1, 2010, Az. 3 Sa 309/10.

^ BAG, judgment of October 19, 2005, Az. 7 AZR 31/05.

↑ BAG, judgment of November 14, 2001, Az. 7 AZR 576/00.

^ BAG, judgment of February 21, 2001, Az. 7 AZR 138/00.

↑ BAG, judgment of February 20, 2008, Az. 5 AZR 290/07.

↑ BAG, judgment of April 6, 2011 , Az. 7 AZR 716/09, NJW 2011, 2750 = ZIP 2011, 1531 = NZA 2011, 905.

↑ Michael Kuhnke: Unfounded fixed-term employment contracts for “previous employment” , NJW 2011, 3131.

↑ ECJ, judgment of March 5, 2009, Az. C-388/07 - Age Concern.

↑ ECJ, judgment of November 22, 2005, Az. C-144/04 - Mangold, Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345 (see also WP article Mangold decision ).

↑ ^a ^b BAG, judgment of October 16, 2008, Az. 7 AZR 253/07 (A).

↑ Thüsing, European Labor Law , p. 151.

↑ ECJ, judgment of October 16, 2007, Az. C-411/05 - Palacios de la Villa.

↑ Hessisches LAG, judgment of October 15, 2007, Az. 17 Sa 809/07.

↑ most recently BAG, judgment of June 23, 2010 , Az. 7 AZR 1021/08, full text.

^ BAG, judgment of June 26, 2002, Az. 7 AZR 92/01; BAG, judgment of June 29, 2011 - 7 AZR 774/09 - NZA 2011, 1151

^ BAG, judgment of August 12, 2009, Az. 7 AZR 270/08.

↑ cf. Individual aspects of the basic fixed term of employment relationships Scientific services of the German Bundestag , status of March 18, 2018

↑ BAG, judgment of March 22, 2000, Az. 7 AZR 758/98.

↑ BAG, judgment of December 4, 2002, Az. 7 AZR 437/01.

^ BAG, judgment of September 12, 1996, Az. 7 AZR 790/95.

↑ BAG, judgment of 6 December 2000, Az. 7 AZR 262/99.

↑ ^a ^b BAG, judgment of January 14, 1982, Az. 2 AZR 245/80.

^ BAG, judgment of April 14, 1985, Az. 2 AZR 218/84.

↑ ^a ^b BAG, judgment of February 15, 2006, Az. 7 AZR 241/05.

^ BAG, judgment of April 7, 2004, Az. 7 AZR 441/03.

↑ LAG Berlin, judgment of March 26, 1999, Az. 6 Sa 76/99.

^ LAG Lower Saxony, judgment of September 21, 2009, Az. 9 Sa 1920/08.

^ BAG, judgment of August 26, 1998, Az. 7 AZR 349/97.

^ BAG, judgment of August 26, 1998, Az. 7 AZR 450/97.

^ LAG Lower Saxony, judgment of February 17, 2004, Az. 13 Sa 566/03.

↑ ^a ^b BAG, judgment of January 20, 2010, Az. 7 AZR 542/08.

↑ BAG, judgment of November 11, 1998, Az. 7 AZR 328/97.

^ LAG Cologne, judgment of June 26, 2008, Az. 10 Sa 799/07.

^ BAG, judgment of April 14, 2010, Az. 7 AZR 121/09.

^ BAG, judgment of February 23, 2000, Az. 7 AZR 555/98.

^ BAG, judgment of July 24, 1997, Az. 7 AZR 669/96.

^ BAG, judgment of May 24, 2006, Az. 7 AZR 640/05.

↑ Landesarbeitsgericht Rheinland-Pfalz, judgment of May 13, 2011, Az. 9 Sa 50/11.

^ BAG, judgment of December 1, 1999, Az. 7 AZR 449/97.

^ BAG, judgment of April 15, 1999, Az. 7 AZR 437/97.

↑ BAG, judgment of June 19, 1986, Az. 2 AZR 570/85.

^ BAG, judgment of August 14, 2002, Az. 7 AZR 225/98.

^ BAG, judgment of September 12, 1996, Az. 7 AZR 225/98.

^ BAG, judgment of March 7, 2002, Az. 2 AZR 93/01.

↑ BAG, judgment of 7 July 1999, Az. 7 AZR 609/97.

↑ BAG, judgment of March 19, 2008, Az. 6 AZR 1098/06.

^ BAG, judgment of March 19, 2008, Az. 7 AZR 1098/06.

↑ ^a ^b Opinion of the Advocate General of 15 September 2011, ECJ, Az. C-313/10.

↑ BAG, judgment of August 29, 1979, Az. 4 AZR 863/77.

↑ BAG, judgment of October 18, 2006, Az. 7 AZR 342/05.

↑ BAG, judgment of January 27, 1988, Az. 7 AZR 292/87.

↑ BAG, judgment of October 18, 2006, Az. 7 AZR 342/95.

↑ BAG, judgment of October 18, 2006, Az. 7 AZR 419/05.

↑ So literally BAG, judgment of 09.12.2009 - 7 AZR 399/08 - juris Ls. = NZA 2010, 495 = NJW 2010, 1548

↑ BAG, judgment of July 18, 2012 - 7 AZR 443/09 - NZA 2012, 1351; BAG, judgment of July 18, 2012 - 7 AZR 783/10 - NZA 2012, 1359

↑ BAG, judgment of January 16, 2013- 7 AZR 661/11 - Rn. 25 = NZA 2013, 614; accordingly: BAG, judgment of 10.07.2013 - 7 AZR 833/11 - Rn. 25 = NZA 2013, 1292; BAG, judgment of February 13, 2013 - 7 AZR 225/11 - Rn. 36 f. = NZA 2013, 777

↑ BAG, judgment of February 19, 2014 - 7 AZR 260/12 - juris Rn. 36 = NZA-RR 2014, 408 with reference to BAG, judgment of July 18, 2012 - 7 AZR 443/09 - Rn. 47

↑ BAG, judgment of February 19, 2014 - 7 AZR 260/12 - juris Rn. 36 = NZA-RR 2014, 408

↑ ^a ^b BAG, judgment of February 19, 2014 - 7 AZR 260/12 - juris Rn. 38 = NZA-RR 2014, 408

↑ BAG, judgment of July 18, 2012 - 7 AZR 783/10 - Rn. 44

↑ BAG, judgment of July 18, 2012 - 7 AZR 443/09 - Rn. 49

↑ AG, judgment of February 19, 2014 - 7 AZR 260/12 - juris Rn. 38 = NZA-RR 2014, 408 (referred back to the LAG)

↑ BAG, judgment of June 25, 2014 - 7 AZR 847/12 - juris Rn. 17 = NZA 2014, 1209

↑ BAG, judgment of June 25, 2014 - 7 AZR 847/12 - Rn. 35 ff. = NZA 2014, 1209

↑ LAG Berlin-Brandenburg, judgment of September 2, 2009, Az. 15 Sa 825/09.

^ BAG, judgment of February 9, 2011, Az. 7 AZR 221/10.

↑ BAG, judgment of July 29, 2009, Az. 7 AZR 907/07.

↑ ^a ^b BAG, judgment of October 18, 2006, Az. 7 AZR 749/05.

↑ ^a ^b ^c ^d BAG, judgment of July 11, 2007, Az. 7 AZR 501/06.

↑ ^a ^b ^c LAG Düsseldorf, judgment of September 26, 2002, Az. 5 Sa 748/02.

↑ ^a ^b ArbG Düsseldorf, judgment of December 15, 2008, Az. 2 Ca 4104/08.

↑ BAG, judgment of July 22, 2014 - 9 AZR 1066/12 - Rn. 25 = NZA 2014, 1330

↑ BAG, judgment of July 22, 2007, Az. 6 AZR 480/09.

↑ most recently BAG, judgment of October 6, 2010, Az. 7 AZR 569/09.

^ BAG, judgment of August 6, 1997, Az. 7 AZR 619/96.

^ BAG, judgment of June 13, 1985, Az. 2 AZR 410/84.

^ BAG, judgment of March 10, 1987, Az. GS 1/84.

^ BAG, judgment of March 10, 1987, Az. 8 AZR 146/84.

↑ BAG, judgment of October 22, 2003, Az. 7 AZR 113/03.

↑ BAG, judgment of December 2, 1998, Az. 7 AZR 644/97.

^ BAG, judgment of April 26, 2007, Az. 7 AZR 366/05.

↑ BFH, judgment of September 10, 2003, Az.XI R 09/02.

↑ BSG, judgment of February 21, 1990, Az. 12 RK 20/88.

↑ BFH, judgment of March 4, 1998, Az. IX ZR 64/97.

↑ BFH, judgment of December 23, 2004, Az.XI B 117/03.

↑ Circular of the BMF dated May 24, 2004, IV A 5 - S 2290 - 20/04

↑ BFH, judgment of January 17, 2008, Az. VI ZR 44/07.

↑ BAG, judgment of 23 March 2005, Az. 4 AZR 238/04.

^ BAG, judgment of February 20, 2002, Az. 4 AZR 31/01.

^ BAG judgment of July 31, 2002, Az. 4 AZR 429/01.

^ BAG, judgment of June 6, 1984, Az. 4 AZR 210/82.

↑ BAG, judgment of July 23, 2014 - 7 AZR 771/12 - Rn. 65 = NZA 2014, 1341

↑ BAG, judgment of 27.09.2000 - 7 AZR 412/99, LAG Berlin-Brandenburg, judgment of October 1, 2008, Az. 15 Sa 1036/08; LAG Baden-Württemberg, judgment of October 14, 2010 · Az. 11 Sa 21/10

↑ expressly rejected for Schl.-Holstein: BAG, judgment of October 6, 2010, file number: 7 AZR 397/09

↑ BAG, judgment of February 20, 2002, Az. 7 AZR 707/00.

↑ BT-Drs. 16/3438 , p. 11.

↑ BT-Drs. 16/3438 , p. 14.

^ BAG, judgment of June 1, 2011, Az. 7 AZR 827/09.

↑ GEW: "Extending temporary contracts of employees with children". (No longer available online.) In: Press release. GEW, April 22, 2013, archived from the original on August 25, 2014 ; Retrieved April 22, 2013 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.

↑ Ralph Hirdina: Termination of scientific staff unconstitutional and contrary to European law! , NZA 2009, 712 ff.

↑ Law on fixed-term employment contracts with doctors in further training (ÄArbVtrG) (PDF; 30 kB)

↑ BAG, judgment of June 13, 2007, Az. 7 AZR 700/06.

↑ ^a ^b BAG, judgment of August 14, 2002, Az. 7 AZR 266/01.

↑ ^a ^b ^c BAG, judgment of July 26, 2007, Az. 7 AZR 495/05.

↑ ^a ^b BVerfG, decision of January 13, 1982, Az. 1 BvR 848/77; BVerfGE 59, 231 - Freelance workers.

^ LAG Hamburg, judgment of April 1, 2009, Az. 3 Sa 58/08.

^ Sächsisches LAG, judgment of April 23, 2007, Az. 3 Sa 520/06.

↑ ^a ^b BVerfG, decision of February 18, 2000 , Az. 1 BvR 491/93, full text.

↑ ^a ^b ^c Saxon LAG, judgment of December 19, 2007, Az. 8 Sa 39/06.

^ SG Hamburg, judgment of October 10, 2006, Az. S 49 RA 658/03.

↑ BT-Drs. 14/4374 , p. 19.

↑ § 1 Para. 1 to 4 NV stage

^ BAG, judgment of April 18, 1986, Az. 7 AZR 314/85.

^ Dörner: The fixed-term employment contract , p. 147 f.

↑ Section 83 (8) of the NV stage

^ Dörner: The fixed-term employment contract , p. 148.

^ BAG, judgment of January 23, 1986, Az. 2 AZR 505/85.

↑ Section 61 (2) sentence 1 of the NV stage

↑ Section 69 (2) sentence 1 NV stage

↑ Section 96 (2) sentence 1 of the NV stage

↑ ^a ^b ^c ^d BAG, judgment of October 23, 1991, Az. 7 AZR 56/91.

↑ Section 61 (2) sentence 1, Section 69 (2) sentence 1, Section 96 (2) sentence 1 NV-stage

↑ Section 61 (3) sentence 1, Section 69 (3) sentence 1, Section 96 (3) sentence 1 NV-stage

↑ Section 61 (5) sentence 2, Section 69 (5) sentence 2, Section 96 (5) sentence 2 NV-stage

^ BAG, judgment of January 23, 1986, Az. 2 AZR 111/85.

↑ LAG Cologne, judgment of January 21, 2008, Az. 2 Sa 1319/07.

^ BAG, judgment of January 23, 1986, Az. 2 AZR 243/85.

↑ § 83 NV stage

↑ Section 62, Paragraph 1, Clause 1, Section 70, Paragraph 1, Clause 1, Section 97, Paragraph 1, Clause 1 of the NV stage

↑ ^a ^b BAG, judgment of March 30, 2000, Az. 6 AZR 630/98.

^ LAG Cologne, judgment of January 1, 2001, Az. 2 Sa 334/01.

↑ Section 61 (8), Section 69 (8), and Section 96 (8) of the NV stage

↑ BFH, decision of March 2, 2007 , Az.XI B 144/06.

↑ BSG, judgment of July 12, 2006, Az.B 11a AL 55/05.

↑ ^a ^b BSG, judgment of July 12, 2006, Az. B 11a AL 73/05.

↑ BSG, judgment of October 26, 2004, Az. B 7 AL 98/03.

↑ BSG, judgment of October 26, 2004, Az.B 7 AL 98/03 R.

↑ LSG Baden Württemberg, judgment of October 10, 2006, Az.L 13 AL 2057/03.

↑ LSG Baden Württemberg, judgment of October 10, 2006, Az. L 13 ___.

↑ LSG Rhineland-Palatinate, judgment of February 25, 2003, Az. L 1 AL 116/02.

^ BAG, judgment of September 29, 2005, Az. 8 AZR 571/04.

↑ BAG, judgment of July 16, 2004, Az. 6 AZR 25/03.

^ LAG Rheinland-Pfalz, judgment of October 7, 2005, Az. 8 Sa 484/04.

↑ Hessisches LAG, judgment of January 17, 2007, Az. 2 Sa 1632/06.

↑ BAG, judgment of December 19, 2007, Az. 5 AZR 260/07.

↑ BAG, judgment of August 13, 2008, Az. 7 AZR 513/07.

^ BAG, judgment of April 19, 2005, Az. 3 AZR 128/04.

↑ BAG, judgment of July 20, 2003, Az. 3 AZR 52/93.

^ BAG, judgment of August 20, 2002, Az. 3 AZR 14/01.

↑ BAG, judgment of December 13, 1994, Az. 3 AZR 367/94.

↑ Federal Statistical Office Germany, press release No. 193 of April 26, 2005

↑ Federal Statistical Office Germany, Microcensus 2005

↑ Federal Statistical Office (2008) Fachserie 1 Reihe January 4, 1 "Microcensus, status and development of employment 2006", Wiesbaden, Federal Statistical Office Germany, microcensus 2002

↑ Eurostat: "Part-time employment as a percentage of total employment, by gender and age (%)"

↑ Boockmann / Hagen Fixed-term contracts and other atypical employment relationships: Are we making the labor market more functional? ZAF 2005, 305ff

↑ Green Paper of the Commission of the European Communities “Modern Labor Law for the Challenges of the 21st Century” of November 22, 2006

↑ D. 19,2,19,9

↑ General Land Law for the Prussian States , Part 2, Section 378.

↑ General Land Law for the Prussian States, Part 2, § 385.

↑ RGBl. I 1926, 399.

^ RAG, judgment of January 5, 1938, RAG 181/37

^ Employment Protection Act of August 10, 1951

↑ Employment Promotion Act of April 26, 1985, Federal Law Gazette I, 1985, p. 710 ff.

^ Dörner: The fixed-term employment contract , p. 211, Rn. 612.

^ BAG, judgment of April 6, 2011, Az. 7 AZR 716/09.

[1] Dörner: The fixed-term employment contract , p. 2 ff.

[BAG_1960-2] BAG, decision of October 12, 1960, Az. GS 1/59.

[3] BAG, judgment of June 28, 2006 , Az. 7 AZR 100/99, BAGE 95, 165 = MDR 2001, 221 = NZA 2000, 1160.

[RL_1999-4] RL 1999/70 / EG of June 28, 1999 together with the appendix (PDF)

[5] ECJ, judgment of July 4, 2006 , Az. C-212/04, NJW 2006, 2465 = ZIP 2006, 2141 = FamRZ 2006, 1350 (Ls.) = DVBl 2006, 123 = NVwZ 2006, 1156 = NZA 2006, 909

[6] ECJ, judgment of January 26, 2012 , Az. C-586/10 -Kücük-; (reprinted inter alia in NJW 2012, 989) in response to a request for a preliminary ruling from the BAG, Az. 7 AZR 443/09.