Work as temporary employee is not creditable against qualifying period

BAG, judgment dated 20.2.2014, 2 AZR 859/11

Employment as temporary worker in the hirer’s company is not credited against the subsequent qualifying period under Section 1 Subsection 1 KSchG. Under the Protection Against Dismissal Act (KSchG), the respective rule scope decides whether temporary employees are classified as employees of the hirer.

Within the context of legal action for unfair dismissal, the Federal Labour Court (BAG) was required to decide on the applicability of the Protection Against Dismissal Act.

The Claimant worked in a drug store outlet of the Schlecker Group over a period of years. When this drug store was closed, the Claimant reached an agreement with her previous employer on cancellation of the existing employment relationship, and concluded a contract of employment with a temporary employment agency. This agency hired the Claimant out to the Defendant who was also a member of the Schlecker Group. Ultimately, the Claimant cancelled her employment relationship with the temporary employment agency and entered into an employment relationship with the Defendant.

Less than 6 months later, the Defendant served notice of ordinary termination of the employment relationship with the Claimant. The Claimant considers that the dismissal is not socially justified. The Protection Against Dismissal Act is applicable. Among other things, she claimed that the time spent as temporary worker in the Defendant’s company must be credited against the qualifying period under Section 1 Subsection 1 KSchG. The BAG referred the matter back to the State Labour Court for further hearing and a decision. The BAG was unable to establish conclusively whether the KSchG is applicable. However, application of the KSchG could not be derived from the Claimant’s previous work as temporary employee.

Fundamentally speaking, no crediting of work as temporary employee against the qualifying period under Section 1 Subsection 1 KSchG

In the opinion of the BAG, periods during which the employee was incorporated into the hirer’s company as temporary worker, cannot, fundamentally speaking, be taken into account when calculating the qualifying period as per Section 1 Subsection 1 KSchG in a subsequent employment relationship between the employee and the hirer. This also applies in the event of a seamless transition from temporary hiring out to the employment relationship.

The BAG initially invokes the wording of Section 1 Subsection 1 KSchG. This is based on the uninterrupted existence of the employment relationship in the company or enterprise concerned, but not on the actual duties.

In addition, the non-crediting is also consistent with the sense and purpose of the qualifying period. This enables mutual trying out. However, a trial of this nature is not fully possible during temporary hiring out. For example, the employer cannot judge whether the employee complies with his accessory obligations in terms of wage payment and the granting of holiday. As such, there is no relationship between the parties during temporary hiring out.

No conflict with the classification of temporary employees in Section 23 KSchG

In the opinion of the BAG, this decision likewise does not conflict with the fact that temporary workers are taken into account when calculating the size of a company in the context of Section 23 Subsection 1 KSchG, if they cover a personnel requirement that is normally given. The purpose of Section 23 KSchG is only to exempt companies from the application of the KSchG if they have the typical characteristics of a small company. In this respect, it is immaterial whether the duties are performed by own or outside employees.

Referral of the matter back to the LAG

The BAG has referred the matter back to the State Labour Court for further hearing and a decision. The applicability of the KSchG can result from an individual agreement between the parties. Thus far, however, no findings have been made concerning such agreements.

Summary

Employers can continue to rely on having a six-month trial period for new employees. The date on which the employment relationship is established is decisive. The actual use of temporary employees in the company will not be credited against the qualifying period under Section 1 Subsection 1 KSchG, even if the same workplace is involved and the employment relationship follows on directly from the temporary hiring out. As far as possible, contracts of employment should avoid anything that could give rise to the impression on the part of the employee that his/her employment relationship will continue unaltered despite a change of official employer (for example waiving of the probationary period).