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Repeated fixed-term contracts may indicate an abuse of right

Employment on the basis of ten consecutive fixed-term contracts within a timeframe of less than seven years may, considering the circumstances of the particular case, be an abuse of the law. As a consequence, the last fixed term may be invalid, leading to an unlimited employment contract. Based on this, the Higher Regional Labour Court of Berlin-Brandenburg (Landesarbeitsgericht, LAG; judgment dated February 4, 2015, docket number 15 Sa 1947/14) found a fixed-term contract invalid and granted the plaintiff a continuation of his employment with his employer. The employee, who worked in public road maintenance, had been employed for six years and eight months on the basis of ten fixed-term contracts. The employer claimed that the fixed-term contracts were necessary as there was no permanent need for the employee’s work. In particular, the employer claimed that the employee was only employed in case of a seasonal demand for work during the winter.  The court, however, found that the employer had failed to demonstrate the only temporary need for the employee’s work. It held that (repeated) fixed-term contracts may not circumvent the statutory principle that they are meant to be the exception, not the rule. The duration and number of contracts as well as the relevant work obligations have to be considered. Based on these principles, the court held that the numerous fixed-term contracts in the case at hand were an abuse of the law. As the employee had been employed for a considerable period of time under consecutive contracts and had always been assigned the same tasks, there was no adequate reason to support the claim that the need for the employee’s work was only temporary. The court found the last limitation invalid and granted the employee’s request for continued employment.