Employees are often employed on a temporary basis. The reasons for which the employer sets such deadlines can be very diverse, whether it is testing or replacing an employee who has taken parental leave. This article is intended to link and answer this thread,

– how employment contracts can be limited in terms of time,

– when the deadline must be justified and

– when it comes to so-called abuse chain restrictions.

The idea of ​​legislation

According to the legal idea, permanent employment contracts are the norm. As a result, there is a growing need to regulate the limitation of employment contracts in TzBfG 14 et seq. According to Article 14(2) of the TzBfG, the legislator only allows the limitation of the employment contract without a valid reason for a period of no longer than two years. This does not depend on whether there is a two-year fixed-term employment contract or three consecutive employment contracts of, say, eight months.

In addition, the restriction of employment contracts is only permitted in accordance with Article 14(1) TzBfG if it is justified by objective reasons. The concept of an objective reason is not definitively defined, but is based on the examples provided by the legislator in Section 14(1) Sentence 2(1) to (8) of the TzBfG. These examples are always based on estimated time. As an example, TzBfG § 14, sentence 1, No. 2 can be mentioned here. reason 3, Restriction of employment contracts for replacement of absent employees allows

What is an abuse chain restriction?

There may be cases when employment contracts between the same employer and employee are repeatedly limited for objective reasons, but this reason is given by the employer only in order not to conclude an open-ended employment contract with the employee, although in fact a complete termination is possible.

The actual reason for the deadline may indeed meet the requirements of Article 14(1) of the TzBfG. However, from the point of view of legal ethics, the use of such a reason cannot be approved. The Federal Labor Court stated in its decision BAG 7 AZR 135/15 explained when it is necessary to examine institutional abuse of law in more detail, what circumstances indicate this and who must explain and prove it and when.

What happened?

In the case decided by BAG, the employee was hired as a teacher and the restriction of his employment contract was justified due to the substitution of another sick teacher. As a result, the plaintiff was repeatedly employed as a substitute teacher for various teachers who were absent due to illness or parental leave. A total of 15 additional fixed-term contract extensions have been agreed, for a total duration of six years and almost four months. The claimant through a action for annulment concluded that the employment relationship agreed between him and the defendant was considered open-ended and accused the employer of institutional abuse of rights due to the number and duration of the terms.

The threshold for institutional abuse of rights and the burden of explanation and proof

The Federal Labor Court explained that the repeated infringements of the limits of Article 14(2) TzBfG led to the examination of institutional abuse of rights, and the following circumstances must be taken into account in order to prevent employers from abusing the time limit. job contracts.

Several means four times exceeded the values ​​from the details of Article 14(2) TzBfG or a triple cumulative excess of these values ​​(eight years or more than 12 extensions or six years and more than 9 extensions). If these limits are exceeded, additional circumstances must be provided by the claimant which show the existence of an institutional abuse of law and which the court rejects by exceeding the objective reason of the term of the relevant employment contract, taking into account all the stated circumstances.that there is an institutional abuse of rights. If these values ​​are exceeded five times individually or four times together (10 years or more than 15 extensions or 8 years and more than 12 extensions), the Federal Labor Court even suspects…