Temporary Additional Demand as a Reason for a Fixed-Term Employment

Lower Saxony Regional Labour Court, decision of 10 December 2024 - 10 SLa 230/24

The Regional Labour Court of Lower Saxony recently addressed the question of what the employer has to present and prove in court when it wishes to rely on “temporary additional demand” as a justification for a fixed-term employment instead of an employment for an unlimited time. 

Facts of the Case

The parties disputed the validity of the fixed term of the concerned employment agreement. The defendant employer argued that the fixed term was objectively justified due to a temporary demand for additional staff to compensate for cancelled courses during the COVID-19 pandemic. However, the plaintiff employee had not actually been assigned to carry out the catch-up teaching for the cancelled courses. For this reason, the Göttingen Labour Court acting as the court of first instance was unable to establish a sufficient link between the stated additional demand and the employee’s temporary employment and consequently upheld the claim. The employer’s appeal against the Göttingen Labour Court’s decision was unsuccessful before the Lower Saxony Regional Labour Court.

Decision

The justification for the fixed term based on temporary additional demand so-called "temporary additional demand" - pursuant to Section 14 (1) sentence 2 no. 1 German Part-Time and Fixed-Term Employment Act (TzBfG), to which the employer refers, does not require that the fixed-term employee is deployed in the exact area where the additional demand arose. The fact that the plaintiff employee himself was not assigned with catching up on the cancelled courses was therefore irrelevant under German fixed-term employment law.

What matters is that there is a link between the temporarily increased demand for labour and the fixed-term employment. The employer is not prevented from distributing the existing workload, changing its work organisation or assigning the additional work to other employees. However, the employer may not use a temporary increase in labour demand as a reason to employ any number of employees by way of a fixed-term employment. Rather, the number of fixed-term employments must correspond to the forecast additional demand for temporarily increased workload and may not exceed this. The employer bears the burden of presentation and proof for the existence of the link between the forecast additional demand and the fixed-term employment.

As the defendant employer was unable to reconstruct the specific planning regarding the attendance of courses to be made up for and the resulting reallocation of tasks during the trial, its submission was deemed insufficient by the Lower Saxony Regional Labour Court. The judgment is final.

Practical Tip

In order to be able to substantiate the link between the anticipated additional demand for temporarily increased workload and fixed-term employment in any legal dispute concerning the validity of a fixed-term employment due to "temporary additional demand", documentation must be provided before the fixed-term employment agreement is to be concluded. This documentation must either show: 

• that the fixed-term employee was deployed in the area in which the additional demand arose (direct activity) or
• that the additional demand arose from the redistribution of the existing workload, a change in the organisation of work or the allocation of additional work to other employees (indirect activity).

This is the only way for the employer to fulfil its burden of proof in the event of a possible legal dispute.