Return to the eternity clause as regards the prohibition of previous employment?

Under Section 14 Subsection 2 Sentence 1 TzBfG (Law on Part-Time Employment), time limitation without an objective reason is inadmissible if a fixed-period or indefinite employment relationship has already existed beforehand. In its judgment of 6 April 2011 (7 AZR 716/09), the BAG (Federal Labour Court) decided that a “previous employment relationship” can only be regarded as such if it has ended a maximum of three years before the current employment relationship. Employment in earlier periods should not be taken into consideration.

At the time, the BAG judgment was noted with pleasant surprise: it helps many companies in practice. At the same time however, there was regular open criticism of the fact that, through its interpretation that “previous” can only apply for the duration of the limitation period of three years, the BAG had assumed the role of substitute legislator. The LAG Baden-Württemberg now takes the same line in its latest judgment. It criticizes the BAG by claiming that “previously” is such a clear (time-unlimited) term that interpretation reducing it to three years is no longer compatible with the wording of the law. Furthermore, the history of the law also suggests the absence of any time limitation. The LAG Baden-Württemberg did not see any violation of Art. 12 GG (Basic Law) – as claimed by the BAG – in the restricting possibility of time limitation without an objective reason.

The LAG closes with the criticism that, in its decision of April 2011 and despite a corresponding obligation under Section 45 Subsection 2 and 3 ArbGG (Labour Court Law), the BAG has not brought about a decision of the Great Senate, although there have been diverging decisions of other Senates. In order to preserve the uniformity of case law, BAG Senates must, when wishing to deviate from the opinion of other Senates, consult the other Senates and request the Great Senate for a decision if no agreement can be reached. The BAG did not do this in 2011. Finally, the LAG Baden-Württemberg rejects protection of confidence for the employer in the specific case. The chain of time limitations had begun prior to the then judgment of the BAG. Consequently, the employer could not have relied on the decision of the BAG when agreeing the time limitation.

Conclusion

The question of eternal application in Section 14 Subsection 2 Sentence 1 TzBfG, considered settled since 2011, is again on the agenda. Employers must still be advised to check precisely whether the employee, now to be hired on a fixed-term basis “without objective reason”, has ever worked for the company in the past. In practice this creates major difficulties, not least when considering the admissible storage data and legal transfers of companies and company divisions. A new decision of the BAG in this matter as well as concerning protection of confidence is eagerly awaited.