No flexibility on limitation periods

On 16 March 2016, the Federal Labour Court (Bundesarbeitsgericht) ruled that a claim has to be delivered to the defendant in order to comply with a limitation period which requires the written assertion of a claim within a certain deadline. The mere receipt of a statement of claim by the court is insufficient even if the statement of claim will be delivered soon, but only after the limitation period has expired (docket number 4 AZR 421/15).

In the present case, an employee sued his employer for remuneration. The court received the statement of claim before the end of the limitation period. However, the court delivered the statement of claim to the employer a few days after the end of the limitation period. The employee argued that the limitation period had been observed due to German procedural law.

Where a procedural period has to be observed, the German Code of Civil Procedure (Zivilprozessordnung) stipulates that the receipt of a statement of claim by the court within the respective period is sufficient, if it will be delivered to the defendant soon. This applies not only to procedural periods such as those for filing an action, but to other periods as well, e.g. the three week period for employees’ unfair dismissal claims.

With this decision, the Federal Labour Court confirmed its previous authorities that this does not apply to limitation periods, and assigned the risk of late delivery by the court to the plaintiff.

The judgment shows that it may be advisable for the claimant to deliver a written claim directly to the defendant simultaneously with a legal action to the court. This ensures that at the end of a limitation period where every day counts, the risk of being barred due to slow delivery by the court is ruled out.

It is possible to include limitation periods of at least three months in employment contracts. Collective bargaining agreements often provide for shorter deadlines.