In practice, the unfounded limitation of the duration of contracts always brings with it difficulties. Recently, there have been a number of judgments on the issue of pre-employment.
In addition to the material requirements, the formal implementation can also be problematic. This is because the prerequisites for an extension of the unfounded time limit within the meaning of § 14 sect. 2 sentence 1 2 of the TzBfG are in principle
firstly, that the extension is agreed in writing during the term of the contract to be renewed and
secondly, that only the duration of the contract is extended and not the other working conditions.
This should not force the employee to accept a new time limit as a result of the proposed changes by the employer.
An exception exists for the adaptation of the contract text to the legal situation applicable at the time of renewal. This is because only the contents of the contract already in force at the time of renewal are documented in the document.
The same applies, if working conditions are included in the contract to which the fixed-term employee, if the time limit had not existed, had a claim. For anything else would infringe the prohibition of discrimination for fixed-term workers in § 4 sect 2 sent 1 TzBfG, which prohibits a factually unjustified unequal treatment of fixed-term employees against an indefinite employed employee.
Danger of being deprived of time.
These principles and exceptions often pose problems for the practice and can lead to employees being able to successfully refer to an extension of the term of the employment contract afterwards in accordance with § 16 TzBfG.
The simplest means of avoiding an unwarranted limitation of time, is to shape the contract amendment and the agreement of the non-periodic limitation in two independent documents.
The LAG Baden-Württemberg has now decided in a judgment that has not yet become final (LAG Baden-Württemberg, Az .: 4 Sa 22/19) how concrete this can be.
The employee was employed by the employer under a fixed-term employment relationship without cause. Before the term of the employment contract ended, the employer prepared an extension agreement and an amendment agreement in two separate documents.
There was no material or immaterial link between the agreements, according to which the effectiveness of one agreement is linked to that of the other. Both documents were available to the employee independently of each other and signed by the employer at the personnel office. The employee signed both documents.
After expiry of the renewed limitation, he invoked that this was ineffective. Because not only the extension, but also other parameters were changed, exist after § 16 TzBfG an indefinite employment relationship.
The court did not follow the employee’s reasoning. Accordingly, there was no new conclusion of an employment contract that was detrimental to the fixed term, although the agreements were concluded at the same time,
if both agreements are presented to the employee separately from each other already signed by the employer and
the employee has the choice of signing one contract and not signing the other.
Only if the employer interlinks the contracts in such a way that it expresses that one contract can only be concluded together with the other contract, would there be an inadmissible influence on the employee’s freedom of decision with regard to the renewal agreement.
The LAG Baden-Württemberg rightly confirms the effectiveness of an extension of time limits on the one hand, on the other hand, if a contract adjustment otherwise takes place in a separate document.
However, it also remains the case that, within the framework of an extension of the time limit, employers must ensure that the strict requirements of the TzBfG and case law are complied with. In particular, this means avoiding any appearance of “coercion” when concluding the extension agreement.