Time limitation of an employment relationship as replacement during parental leave

BAG, judgment dated 9.9.2015 – 148/14

According to the BAG (Federal Labor Court), functional time limitation of an employment relationship as replacement during parental leave does not presuppose that the regular employee has already expressed a request for parental leave – satisfying the requirements of Section 16 Subsection 1 BEEG (Parental Allowance and Parental Leave Act) – at the time of conclusion of the contract with the replacement employee.

In the case before the BAG, the plaintiff worked for the defendant over a period of more than six years on the basis of seven fixed-term employment contracts. The most recent employment contract concluded with him was at the beginning of December 2010, under which he was employed from May 2011, and “for a fixed period up until achievement of the following purpose: end of the parental leave of Ms. B”). In November 2010, Ms. B. had advised that she was pregnant, that the birth was estimated or May 2011, and that she intended to take parental leave of one year. She applied for parental leave of one year following the birth. The plaintiff filed legal action for checking of the time limitation. The Labor Court dismissed the action, the LAG dismissed the appeal. The BAG affirmed the decisions.

AGB (General Terms and Conditions of Business) check, Sections 305 et seq. BGB

The BAG initially established that the pre-formulated agreement on time limitation did not violate the transparency requirement under Section 307 Subsection 1 Sentence 2 BGB (German Civil Code). It considered the agreement between the parties, to the effect that the employment relationship would end upon achievement of the purpose and that the purpose was to replace Ms. B. during her parental leave, to be clear and sufficient. As per its previous case law, it did not carry out an appropriateness check as defined in Section 307 Subsection 1 Sentence 1, Subsection 2 BGB. Under this case law, agreements on time limitation are not subject to an appropriateness check.

Justification of time limitation: replacement during parental leave, Section 21 Subsection 1 BEEG

The BAG then considered the time limitation as justified by the objective reason of replacement for the duration of parental leave in accordance with Section 14 Subsection 1 Sentence 2 No. 3 TzBfG (Law on Part-Time Employment) in conjunction with Section 21 Subsection 1 BEEG. In this respect, it concerned itself mainly with the question – thus far not yet clarified by the Supreme Court and assessed differently in the commenting literature – of whether the effectiveness of the time limitation is prevented if the regular employee has not yet expressed a request for parental leave – complying with the requirements of Section 16 Subsection 1 BEEG – at the time of conclusion of the contract with the replacement employee, but rather has only advised the claiming of parental leave. The BAG came to the conclusion that neither the wording of the law in Section 21 Subsection 1 and 3 BEEG nor the history of the regulation, nor systematic interpretation indicated that the objective reason of parental-leave representation presupposes that the regular employee had already requested parental leave at the time of concluding the contract with the replacement employee.

Divergence of duration of reason for time limitation and contract term

The BAG also assumed that the objective reason of replacement was not called into question by the fact that the time limitation of the employment relationship was solely for the duration of Ms. B.’s parental leave as from May 2011, although it was foreseeable that Ms. B. would take maternity leave as from the end of March 2011. Because, in addition to the objective reason for the time limitation of the employment relationship, there is no additional need for own objective justification of the contract term granted. If the contract term is shorter than the foreseeable duration of the reason for time limitation, this only calls the reason into question if sensible work by the employee in accordance with the objective reason is not possible. This was not the case in the matter to be decided.

Check on abuse of law

According to the BAG, the time limitation was likewise not ineffective under the principles of institutional abuse of law (Section 242 BGB). The total of seven fixed-term employment contracts and the overall duration of the fixed-term employment relationship of six years and three months, was not considered by the BAG to be sufficient as evidence for the assessment, always required when checking a time limitation, of whether the employer was improperly resorting to fixed-term employment contracts. The plaintiff did not present further evidence for an abuse of law.

Summary

An employer can conclude a fixed-term employment contract with a replacement for the duration of a regular employee’s parental leave, if the regular employee has advised him that he intends to take parental leave, but has not yet issued a request for parental leave in accordance with the requirements of Section 16 BEEG.