Two members of a mail order company’s works council failed with their claim before the Landesarbeitsgericht Berlin-Brandenburg (Regional Labour Court of Berlin-Brandenburg) to be transferred to a permanent employment contract (Az.: 23 Sa 1445/15; 23 Sa 1446/15).
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The Christmas shopping season gives rise to an increased demand for labour at mail order companies. Accordingly, more workers are taken on during this time on a temporary basis. Come the end of the year, it may be the case that a portion of these workers are kept on as the circumstances require and depending on their work performance¿ some with fixed-term employment contracts, others with permanent employment contracts.
Two members of the works council failed with their claims to be moved onto a permanent employment contract. They argued that the only reason they had not been transferred to a permanent employment contract was because of their service on the works council. Like the Arbeitsgericht Potsdam (Labour Court of Potsdam) before it, the LAG Berlin-Brandenburg dismissed the claims in its ruling of January 13, 2016. It stated that the right to be transferred to a permanent employment contract could not be rejected on the basis that the worker in question had served on the works council, this kind of discrimination being forbidden under employment law. However, it went on to say that the plaintiffs could not portray themselves as having being been discriminated against in this way, especially as the mail order company would still have a works council and the selection of workers to be retained took place according to a formal process. This also took members of the works council into account. The LAG held that mere speculation that they had not been moved onto a permanent employment contract because of their service on the works council was not enough.
Nonetheless, employers need to be careful when it comes to applying fixed-terms to employment contracts. In the absence of an objective reason, this type of fixed-term can only last for a maximum of two years. Within this timeframe, the employment contract cannot be extended more than three times. If these deadlines have expired and there is no objective reason to apply a new fixed-term, the employee may be entitled to be moved onto a permanent employment contract.
An employment contract regulates the key aspects of an employment relationship and should therefore be prepared thoroughly and in detail. This particularly applies to fixed-term employment contracts. Lawyers who are competent in the field of employment law can be consulted to protect your interests.