Crediting of a previous internship to the probationary period of a vocational training contract, BAG 19.11.2015 - 6 AZR 844/14

The parties concluded an internship contract from March to 31.07.2013 to bridge the gap until the start of the training relationship on 01.08.2013. The training relationship then began with a three-month probationary period. On 29.10.2013, the defendant terminated the training relationship. Pursuant to Section 22 (1) BBiG, a vocational training relationship can be terminated at any time during the probationary period without notice. The plaintiff was of the opinion that the probationary period had already expired, as the previous internship should be counted towards the probationary period. The termination of 29.10.2013 was therefore invalid.

The Federal Labor Court ruled, as did the Labor Court and the Regional Labor Court, that an internship does not count towards the probationary period of the training contract. This applies regardless of whether an internship actually existed or whether the plaintiff was already employed. According to § 20 BBiG, a training relationship begins with the probationary period. A pre-existing contractual relationship between the trainee and the trainer is not counted towards the probationary period. This follows from the wording of the provision and the meaning and purpose of the probationary period in a training relationship. An internship does not have the same purpose as the probationary period in a training relationship. The special obligations arising from § 14 BBiG in a training relationship cannot be compared with other obligations in an internship or employment relationship either.

However, the situation may be different if it is not a training relationship, but the internship leads directly to a regular employment relationship. In this case, the type of internship could be decisive in determining whether the internship actually meets the criteria for an employment relationship. In such a case, the crediting of the previous internship period to the probationary period could certainly be considered.