Controlling the content of a limited-period transfer of higher- level duties

BAG, judgment dated 7.10.2015 – 7 AZR 945/13

The BAG has decided that the temporary transfer of a higherlevel function is subject only to a content check as per Section 307 Subsection 1 BGB (German Civil Code). The BAG has again affirmed the established Supreme Court case law, according to which the time-limiting of individual contract terms is not to be measured against the standard of Section 14 TzBfG (Law on Part-Time Employment). The objective reasons stated therein can however influence the weighing-up of interests as per Section 307 Subsection 1 BGB.

The plaintiff demanded that her employer continue to employ her as 1st (solo) bassoonist. She initially worked as deputy (solo) bassoonist in the bassoon group of the defendant’s orchestra. In this role, she received a basic salary as well as a position allowance of € 304.24 gross per month.

In 2008, the previous 1st (solo) bassoonist became ill on a longterm basis. On October 9, 2008, the parties therefore agreed that the plaintiff would take over the position “on an interim basis” “until such time as the job incumbent recovered, at most however up to July 30, 2009”. For this, the plaintiff received an increased allowance of € 608.49 gross per month. The position as 1st (solo) bassoonist was advertised as from September 2009, but not re-filled until September 2012. In the interim, the parties had repeatedly agreed the transfer of the higher-level position, in each case for a limited period, most recently up until September 9, 2012.

The legal action aimed at continued employment was unsuccessfulin all instances. The instances consider the time-limiting of the higher-level functions to be effective. In particular it withstands the content check as per Section 307 Subsection 1 BGB.

No direct application of Sections 14 et seq. TzBfG to time limitation of individual contract terms

The BAG initially affirmed its previous case law, according to which the time-limiting of individual contract terms is not subject to control as per Sections 14 et seq. TzBfG. This is only applicable in cases of time-limiting of the entire employment relationship. The time-limiting of individual work terms must be checked solely on the basis of Section 307 Subsection 1 BGB. This does not require any objective reason for the effectiveness of the timelimitation, but rather predominance of the legally recognizable interests of the employer over those of the employee. However, the objective reasons under Section 14 TzBfG can affect the weighing-up of interests in favor of the employer.

Valuations of Sections 14 et seq. BGB take effect in the context of the content check as per Section 307 Subsection 1 BGB

By way of exception, the case law does however require a circumstance for the effective time-limitation of individual contract terms that would justify the time-limitation of an employment relationship overall. This was decided by the BAG for example for a significant increase in working hours (see BAG dated 15.12.2011 – 7 AZR 394/10). A significant increase in working hours involves a significant increase in remuneration. The socialpolicy purpose of the Law on Part-Time Employment is to ensure a permanent income for the employee. Even in the event of a significantly higher salary payment, he adapts his living situation. The social-policy purpose of the Law on Part-Time Employment must therefore also be taken into account when weighing up interests as per Section 307 Subsection 1 BGB.

The BAG has not transferred this exception unrestrictedly to the case set out here. In particular, there is no legislative assessment aimed at ensuring a specific hierarchical position. Only if the temporary transfer of a position involves a temporary and significant increase in remuneration does the assessment under the Law on Part-Time Employment apply. Only then can a circumstance be required within the scope of the weighingup of interests that corresponds to an objective reason as per Section 14 TzBfG.

In the case set out here, the remuneration was increased by only 9 percent through transfer of the higher-level position. In the view of the BAG, this is not sufficient for inappropriate disadvantaging of the plaintiff. The interest of the employer in transferring the position for a limited period only during the search for a new 1st (solo) bassoonist, prevails.

Summary

The temporary transfer of individual contract terms – in particular the transfer of a higher-level position – is not directly subject to the check on objective reasons under Section 14 TzBfG. Rather, case law requires a weighing-up of interests. In this respect, the weighting of the employee’s interests increases the more he adjusts his life planning to the changed conditions. In particular in cases of significantly increased remuneration, the employer must have a substantial interest in the time limitation.