How to hire new people on a temporary basis

Whether for a project or as a trial period: Anyone hiring employees on a temporary basis must comply with certain legal requirements. We provide an overview.

Do you need to hire new people temporarily for an important project? Or perhaps you want a candidate to demonstrate their abilities first? These can be reasons for a manager to offer temporary employment contracts . They should be familiar with the relevant regulations. Employment law specialist Prof. Dr. Nicolai Besgen answers the most important questions.

Where is the time limit legally defined?

The Part-Time and Fixed-Term Employment Act (TzBfG ) has been in effect since January 1, 2001. Prior to this, the Federal Labor Court's case law had established the most important principles. In addition to the TzBfG, supplementary regulations from many collective bargaining agreements apply . An employment relationship is considered fixed-term if a contract is concluded for a specific period . This is the case if either

• a precisely defined term is agreed upon = calendar-based Expiration
• or the duration results from the type, purpose or nature of the work performance = temporary Employment contract. 

What types of fixed-term contracts are there?

In fixed-term employment law, a distinction is made between fixed-term employment and fixed-term contracts.

• with objective reason and
• Expiration without Factual reason

The distinction is crucial , as different conditions apply for their validity. Therefore, the classification must be carefully examined before concluding the employment contract.

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Under certain conditions, individual working conditions can also be made temporary, such as an increase in working hours.

Fixed-term contract with objective justification

The strict requirements for fixed-term employment contracts with objective justification also apply in small businesses and during the first six months of employment. Section 14, paragraph 1, numbers 1 to 8 of the Part-Time and Fixed-Term Employment Act (TzBfG) lists examples of objective justifications, including temporary operational needs , completion of vocational training , temporary replacement , or probationary period . This list is not exhaustive; other reasons may also exist. However, the objective justification must actually exist at the time the contract is concluded.

For time-limited contracts , the objective reason is sufficient; it does not need to be explicitly stated in the contract.

In the case of fixed-term contracts , such as a substitution without a fixed end date, the reason must also be stated in the contract .

Fixed-term contract without objective justification for initial employment

Fixed-term contracts without objective justification can last a maximum of 24 months for a first-time hire . Three extensions are possible within this period . If the employee has previously worked for the same employer, a fixed-term contract without objective justification is generally not permitted.

Can the boss change the working conditions during the fixed-term contract?

When a fixed-term employment contract is extended without objective justification, the terms and conditions may not be changed – not even to the employee's advantage. This applies, for example, to remuneration or working hours. Important: If a change is made nonetheless, the employment contract then becomes permanent.

During the contract period , the employer may change the terms of employment at any time. Note: This only applies to fixed-term contracts without a valid reason, i.e., initial hires.

When does the fixed-term contract end and what needs to be considered?

A fixed-term employment contract ends upon expiry of the agreed period or upon fulfillment of its purpose . Any extension of the contract's end date, even by just a few days, can result in an open-ended employment contract! For example, if a fixed-term employee continues working after the contract expires without the employer objecting, an open-ended employment contract is established.

Employees must challenge an invalid fixed -term contract in court within three weeks of its termination . If the employer does not acknowledge the invalidity and the employee misses the deadline for filing a lawsuit, the fixed-term contract becomes retroactively valid.

What does written form mean?

According to Section 14 Paragraph 4 of the German Part-Time and Fixed-Term Employment Act (TzBfG), a fixed-term employment contract must be agreed upon in writing before (!) employment commences. Otherwise, the fixed term is invalid . A verbal agreement regarding a fixed term is therefore not permissible.

Can you terminate the contract at any time during the fixed term? 

A fixed-term employment contract can only be terminated with proper notice if this is stipulated in the individual contract or a collective bargaining agreement . The right to terminate must therefore be explicitly included in the contract!

Source: Law firm Meyer-Köring
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