Fixed-term employment contracts without objective grounds also permitted with works council members - there is no entitlement to conclude a follow-up contract. BAG 25.06.2014 - 7 AZR 847/12
The plaintiff was initially employed by a chemical company as a chemical laboratory assistant for a fixed term of one year without a material reason. During this time, she was elected to the works council. The contract was subsequently extended for a further year. After the contract expired, the company refused to continue to employ her. The plaintiff considered this to be unlawful discrimination due to her work on the works council, as the company regularly extended employment contracts or terminated employment relationships.
The BAG took the view that employment contracts with works council members can also be effectively limited in time without a material reason for up to two years in accordance with Section 14 (2) TzBfG. During this period, a maximum of three extensions are also permitted. The works council office does not preclude the application of the TzBfG. In individual cases, however, it must be examined whether the refusal of a fixed-term or open-ended follow-up contract constitutes inadmissible discrimination due to the works council activity pursuant to Section 78 sentence 2 BetrVG. If this is the case, the works council member has a legally enforceable claim to the conclusion of a corresponding contract. The burden of presentation and proof of unlawful discrimination lies with the works council member. If it presents evidence of discrimination due to the works council activity, the employer must specifically address this and, if necessary, refute the evidence. In court, the burden of proof for unlawful discrimination lies with the works council member who invokes it. If the works council member presents evidence that suggests discrimination due to the works council activity, the employer must specifically address this and, if necessary, refute the evidence.
This means that works council members' employment contracts can be limited in time as long as the limitation is not due to membership of the works council.