Sonntag, 11.09.2005
It is possible to change the working conditions during the fixed-term contract.
from
Horst-Walter BodenbachLawyer
Specialist in labor law
Give me a call: 0261 - 404 99 605
E-Mail:
The prohibition of the connection of the § 14 exp. 2 sentence 2 TzBfG does not prevent an extension of the limited contract if the change of the conditions of work does not take place in connection with the extension. This was decided by the Federal Labor Court in its judgment of January 18, 2006 (7 AZR 178/05). It thereby dismissed an employee's action for annulment of the time limit.
The employer had concluded a fixed-term employment contract with the employee for a period of one year. After about nine months, the parties amicably amended the contract mainly to increase the number of hours to be worked by the employee per week from 30 to 39 hours. In addition, they agreed on the validity of various general terms and conditions. The term of the contract was retained. Shortly before the fixed-term contract expired, the parties extended the modified contract by six months.
An employment contract with a fixed term of up to two years may be agreed – even without there being an objective reason for the time limit – if there has been no previous employment relationship (including no fixed-term employment relationship) between the parties. If the fixed-term is shorter, the fixed-term contract may be renewed a maximum of three times up to the maximum duration of two years.
A fixed-term contract ends at the end of the period for which it was concluded, without the need for notice of termination.
However, according to the case law of the Federal Labor Court, a fixed-term contract can only be extended if a written agreement on the longer term of the contract is concluded before the end date of the existing fixed-term contract is reached. Furthermore, it is only an extension if the terms of employment of the fixed-term contract are maintained. Thus, only the term may be extended, but not the content. Otherwise, it is not an extension, but the impermissible conclusion of a new fixed-term contract. The consequence of this impermissible time limitation is that the employment relationship is considered to be of unlimited duration. This means that a notice of termination is required to terminate it.
In its judgment of January 18, 2006, the Federal Labor Court ruled that both an extension of the time limit and a change in working conditions are possible without this constituting an impermissible new contract. The only requirement for this is that the change in working conditions does not occur in connection with the contract extension.
The ban on subsequent contracts is only intended to protect the employee from being forced to accept poorer working conditions in connection with the extension of the fixed-term contract or from being motivated to enter into a new contract due to more favorable working conditions.
In the future, it will therefore be possible – at least in theory – to change the working conditions one day before or after the extension of the contract period. However, in order to avoid even the slightest suggestion of a covert new fixed-term contract, employers should allow a certain period of time to pass between the amendment of the contract and the extension of the term. In this case, the time lag is already an indication that the change is not related to the extension.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.