The Legal 500

Twitter Logo Youtube Circle Icon LinkedIn Icon

GRP Rainer LLP

AUGUSTINERSTRAĂźE 10, 50667 COLOGNE, GERMANY
Tel:
Work +49 221 272 27 50
Fax:
Fax +49 221 272 27 52 4
Email:
Web:
www.grprainer.com
Berlin, Bonn, Cologne, Dusseldorf, Frankfurt, Hamburg and 3 more

Show all Press releases

LAG Hamm: Fixed-term employment contract due to extra work must be properly justified

May 2018

A temporary need for manpower can constitute an objective reason justifying a fixed-term employment contract, but this temporary need has to be properly justified.

It is even possible to have several consecutive fixed-term employment contracts if there is an objective reason justifying this. One example of an objective reason justifying a fixed term is if the employer only has a temporary need for extra manpower. Having said that, the employer has to properly make the case that this need is only temporary. We at the commercial law firm GRP Rainer Rechtsanwälte note that it must be possible to anticipate with sufficient certainty that there will be no further need for the extra manpower in question once the contract governing the temporary employment relationship has come to an end. A ruling of the Landesarbeitsgericht (LAG) Hamm [Regional Labour Court of Hamm] from July 6, 2017 shows that a fixed term may be invalid in the absence of this kind of prognosis (Az.: 17 Sa 172/17).

In the instant case, a university had concluded a fixed-term employment contract with an employee for a period of around two years due to an increased amount of student counselling work resulting from double the number of school leavers, with this increased workload not expected to continue after the expiry of the contract. The relevant employee assumed responsibility for other tasks in addition to student counselling, particularly in relation to study coordination.

She later applied to have her employment contract extended for an indefinite period of time, which the university rejected. She subsequently lodged a claim shortly before the fixed-term employment contract expired requesting that it be found that her employment relationship would not come to an end on account of the fixed term. The competent labour court ruled in her favour, and the claim was also successful before the LAG Hamm.

The LAG held that a fixed term in response to a temporary need for manpower presupposes that it be expected with sufficient certainty at the time of the contract’s conclusion that there will be no permanent need for this extra manpower after the contract has expired. The employer must present a prognosis to this end supported by concrete evidence. The Court found that this prognosis represents a component of the objective reason justifying the fixed term. On the other hand, it ruled that general uncertainty regarding a possible future job opportunity does not justify applying a fixed term. The university was found to have failed to demonstrate this, particularly as the employee had taken on other responsibilities as well.

All employment contracts, and not simply those with a fixed term, should always be prepared thoroughly and in detail. Employers can turn to lawyers who are experienced in the field of employment law.

https://www.grprainer.com/en/legal-advice/employment-law.html

Legal Developments by:
GRP Rainer LLP

Legal Developments in Germany

Legal Developments and updates from the leading lawyers in each jurisdiction. To contribute, send an email request to
  • LAG DĂĽsseldorf: Dismissal with immediate effect valid in response to threat

    Anyone who seriously threatens their employer or superior should expect to be dismissed with immediate effect. This was confirmed by a ruling of the Landesarbeitsgericht (LAG) DĂĽsseldorf [Regional Labour Court of DĂĽsseldorf] from June 8, 2017 (Az.: 11 Sa 823/16).
  • Tax evasion: Only voluntary disclosure affords protection from severe penalties

    Anyone who has been caught for tax evasion should expect to be faced with severe penalties. Voluntary disclosure is the only way of returning to a state of normal tax affairs and avoiding penalties.
  • GSK Update: AIFM Marketing in Germany - The clock is ticking for U.S. and other non-EU fund managers

    Our GSK Update informs about the impact of recent German investment fund legislation (UCITS V Implementation Act) for AIF managers, who are not domiciled in the EU (“non-EU-AIFM”) and who seek to market AIF shares in Germany in accordance with applicable German investment fund law under the EU-AIFM Directive (2011/61/EU).
  • GSK expands Luxembourg presence with a new tax partner

    Opened at the beginning of March 2016, GSK Stockmann + Kollegen continues to expand its Luxembourg office. Mathilde Ostertag recently joined the Luxembourg team of Equity Partners Dr. Marcus Peter, Andreas Heinzmann and Dr. Philipp Mößner as Local Tax Partner.
  • EIA - Strengthening the role of the public

    Among other things, the recent amendment to the Environmental Impact Assessment Act has broadened the rights of (what is termed) the "affected public". The affected public consists primarily of various citizens' initiatives pursuing environmental or public-health purposes. It may for instance file an appeal against a negative decision at the screening stage (i.e., a decision according to which the given project does not require the issuance of an EIA report), and seek its annulment in court. The affected public has been granted a stronger voice also in subsequent procedures in which the fate of a building project is being decided: zoning proceedings and the proceedings on the issuance of a building permit. Taken together, these legislative changes may make it more difficult to implement projects which require an EIA report; in particular, the length of permission proceedings may be substantially extended.
  • New Top Level Domains – Noerr expert warns against trademark infringements

    On June 13, the Internet Corporation for Assigned Names and Numbers (ICANN) published the names of those who have applied for a new top level domain the ending of which may be geographic, such as "munich", industry identification such as "insurance" and even all trademark names and company descriptions such as "canon" and "adidas".
    - Noerr
  • No obligation to set up filtering systems in order to prevent copyright violations

    ECJ, decision of February 16th, 2012, ref. C-360/10 – SABAM
  • Further ECJ Ruling concerning NGO’s right of action under German environmental law

    For the second time within a short period of time, the non-governmental organisations right to challenge administrative decisions under German law is going to be subject to the jurisdiction of the European Court of Justice (ECJ). In January 2012, the German Supreme Administrative Court (Bundesverwaltungsgericht) referred a case to the ECJ for a preliminary ruling concerning the NGO’s right of action.
  • Lessons in Cross-Border M & A Transactions

    The fundamental advice for international business transactions is obvious and easy to understand: different countries have different laws, business habits and cultures. These differences may range from minor nuances, such as lengthy French business lunches or unusual Spanish office hours, to significant legal roadblocks, such as strict European employment laws.
  • Priority rental rights in insolvency

    Parties to rental contracts for commercial premises often agree priority rental rights. In practice, this concept is used to cover a whole series of legal structures. These range from fixed options for the tenant to a promise made by the landlord as a business policy that if any additional premises become available, they will be offered to the tenant. In 2010 the Berlin Court of Appeal issued a ruling on such priority rental rights in insolvency; the decision has recently been published.