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Waited long enough?

Times during which a temporary worker was incorporated into the operation of the leasing company may, in case thereafter a contract between himself and the leasing company is concluded, not be considered as waiting time to trigger the applicability of the German Dismissal Protection Act (Kündigungsschutzgesetz, KSchG). This was decided by the  Federal Labour Court (Bundesarbeitsgericht, BAG) on February 20, 2014 (docket number 2 AZR 859/11).

In the case at hand the defendant is the liquidator of a company (hereinafter debtor), which operated nationwide several drugstores. The debtor leased the plaintiff from November 2009 onwards from a company. In January 2010 the plaintiff and the debtor concluded a contract of employment with effect from February 2010. By letter dated July 7, 2010, the debtor, which employed more than ten workers regularly, terminated the employment relationship effective August 31, 2010. The plaintiff argued to enjoy dismissal protection as altogether the 6 months waiting period for the applicability of the German Dismissal Protection Act was fulfilled.

The lawsuit was not successful. The Federal Labour Court held that times during which a temporary worker was incorporated into the operation of the leasing company may not be counted on the waiting time of the Dismissal Protection Act in case a future employment relationship between the temporary worker and the leasing company should be concluded. This applies even if the employment relationship seamlessly connects to the release and the employee has been continuously employed in the same company. The waiting time should allow the parties to test whether they want to permanently conclude a contract. This could only be achieved if the employer can not only assess the performance of the temporary worker, but also his other behaviour during the employment.