BAG on unfounded fixed-term employment in the case of so-called previous employment: - After 22 years, unfounded fixed-term employment is okay After 22 years, fixed-term contracts without a material reason are fine

Background:

Statutory regulation vs. BAG: According to Section 14 TzBfG, an unfounded fixed-term contract is inadmissible "if a fixed-term or permanent employment relationship has already existed with the same employer." In the past, the BAG found this legislative provision too strict and therefore ruled back in 2011 that a fixed term without objective grounds is also possible if the previous employment relationship dates back more than three years. In this case, the risk of a chain of fixed-term contracts, which the legislator wanted to avoid, no longer exists. Since then, this "3-year limit" has been regarded as decisive for the permissibility of a fixed term without objective grounds despite previous employment.

Decision of the Federal Constitutional Court (BVerfG): However, this interpretation of the law by the BAG did not stand up to constitutional scrutiny by the judges in Karlsruhe. The BVerfG had to rule on several constitutional complaints from employees on fixed-term contracts who took the view that "not before" meant "never" and not merely "more than three years ago". The BVerfG did not see the statutory provision quite so clearly and ruled that the specialist courts can and must restrict the scope of application of Section 14 (2) sentence 2 TzBfG by interpreting it in line with the constitution if the prohibition of fixed-term contracts without objective grounds is unreasonable because there is no risk of chain limitation by exploiting the structural inferiority of the employees and the prohibition of fixed-term contracts without objective grounds is not necessary to maintain the permanent employment relationship as the standard form of employment.

Change in the case law of the BAG:

The BAG changed its previous case law at the first opportunity. In its ruling of 23.01.2019 - 7 AZR 733/16, the BAG determined that the previous 3-year limit can no longer be upheld. It also clarified that the ban on fixed-term employment without objective grounds could be unreasonable if the previous employment was a very long time ago or was only for a very short period of time. However, it did not consider a period of 8 years to be sufficient for this. It now ruled differently in the current decision of 22.08.2019 - 7 AZR 452/17: A period of 22 years between the previous employment and the fixed-term employment without objective grounds leads to the prohibition of fixed-term employment being unreasonable. According to the BAG, there were no special circumstances that would require the ban to be applied.

Conclusion:

The uncertainty as to whether or not an unfounded fixed term is effective in the case of previous employment remains. It remains to be seen whether further decisions by the BAG will provide more clarity. Employers are still strongly advised to carefully check whether and, if so, when and for how long a previous employment existed in the case of fixed-term contracts without objective grounds.