Multiple fixed-term employment contracts of university scientists and the academic precariat

Multiple fixed-term employment contracts of university scientists may be lawful, as recently confirmed and specified by the German Federal Labour Court (Bundesarbeitsgericht, BAG) in its decision of 8 June 2016 (docket number 7 AZR 259/14). The Court did not find an abuse of legal right. The practice of multiple or repeat fixed-term employment (Kettenbefristung) may not be legally inadmissible if the fixed term is due to further scientific qualification.

By way of background, German law allows for (repeat) fixed-term contracts only in the event of objective justifications for the fixed term, eg replacement of an absent employee. Without such a justification fixed terms are only admissible up to a maximum period of two years. Employer flexibility is increased by special legislation (Academic Fixed-Term Contract Act, Wissenschaftszeitvertragsgesetz) in case of scientific employees. According to the Act, fixed-term contracts are possible for the duration of six years prior to the completion of the doctorate and for the duration of another six years upon the completion of the doctorate or if the employment is mainly financed by external funds.

In the case at hand, the claimant was employed for more than 22 years, at first as a scientific assistant parallel to a Ph.D. and a subsequent postdoctoral thesis, followed by various fixed-term contracts based on external funding. The Higher Labour Court saw this lengthy period as an indication of the abuse of the legal possibility of fixed-term contracts.
While acknowledging that the extensive use of fixed-term employment contracts, in spite of objective reasons, may in principle constitute an abuse of legal right and lead to invalid contracts in the individual case, the Federal Labour Court confirmed that only the last in the series of multiple fixed-term contracts could be subject to legal assessment. It ruled that an abuse of legal right did not take place and pointed to the fact that a major part of the last fixed-term contract was due to further scientific qualification of the claimant. However, the Federal Labour Court did not come to a final conclusion and remitted the decision to the Higher Labour Court that now has to decide whether the fixed term was justified on the grounds of external funding.

The vast majority of staff in universities or research institutes in Germany below the rank of professor are on such fixed-term contracts, despite efforts to limit their use over the past decade. Accordingly, recent changes to the Academic Fixed-Term Contract Act have been made and have reignited the debate over Germany’s so-called academic precariat. Discussions focused on whether there ought not be more permanent positions in academia beside professor level. It will be interesting to see whether the decision of the Federal Labour Court will be wind in the sails of many researchers who feel that the applicable law is unfair and forces fixed-term researchers to leave German academia.