Germany: A business trip paid by the employer counts as working time and, therefore, this time has to be taken into account when determining the duration of the employment relationship in terms of the validity of a fixed-term
In the case before the Regional Labour Court of Düsseldorf, an employee was hired based on a fixed-term contract, initially for a period of six months. There were no objective grounds justifying the fixed-term. The parties agreed that the employment should begin on Monday, 5 September 2016. From his first day of work until 23 September 2016, the employee was supposed to attend a training in a different city. For this purpose, the employee travelled to the location of the training already on Sunday, 4 September 2016. This was agreed with his employer, who also reimbursed him for the travel expenses and the hotel costs for the overnight stay from 4 to 5 September 2016. The parties later agreed to extend the employment relationship until 4 September 2018. After the expiration of this fixed-term, the employee did not receive a permanent position. He went to court claiming that he is entitled to continued employment as the fixed-term did not validly end his employment relationship.
The Regional Labour Court of Düsseldorf ruled in favour of the employee. However, the court admitted the possibility to appeal to the Federal Labour Court, which could still overturn the verdict.
Pursuant to the Regional Labour Court, the fixed-term without objective grounds, agreed between the parties, is invalid. German statutory law only allows such fixed-term employment up to a maximum duration of two years. In the present case, this maximum permissible duration was exceeded by one day as the employee’s business trip on 4 September 2016 has to be considered working time, and therefore counts towards the duration of the employment relationship. Given that the employment began on 4 September 2016, the two-year-period expired at midnight on 3 September 2018. As the employee still worked on 4 September 2018, the two-year-period was exceeded, which made the fixed-term invalid and led to an unlimited employment relationship between the parties.
Based on this case, it becomes clear once again how important it is for employers to strictly obey statutory law when it comes to fixed-term employment. In particular, employers need to ensure they comply with the maximum permissible duration of two years when concluding fixed-term employment contracts without objective grounds. Furthermore, fixed-term employment contracts always have to be signed before the employee begins to work, as the fixed-term is subject to a statutory written form requirement.
