And another important point: fixed-term employment contracts must be concluded in writing. In principle, employment contracts do not have to be in writing – but the time limit does. If a fixed-term contract is concluded only orally, then the formal requirements of the time-limit will not be met. There is then a working relationship, but it is unlimited.
Does this happen in practice?
Extremely rare. But it can happen that the employer ignores the expiration of the contract and allows the employment to continue. That would then be an implied employment contract that comes through categorical behaviour. Then this employment contract is for an unlimited period.
The sticking point: Fixed-term contracts are valid until the summer holiday only
A common point of contention is that fixed-term employment contracts for teachers or other school staff often only last until the end of the school year and a new contract is only entered into after the summer vacation. This means that those affected have to register as unemployed during the summer holidays. Is this practice permissible?
In fact, this has been a problem for years. However, the state of North Rhine-Westphalia at least has now put in place regulations to end this anti-social approach. To what extent similar or similar regulations exist in other federal states, one should ask the local Personnel Council or the local GEW.
In North Rhine-Westphalia, the Ministry of Education issued a decree in December 2017, describing three star constellations according to which the working relationship must also include school holidays:
- If recruitment takes place by February 1 at the latest and continues until the start of the summer vacation;
- If the hiring occurred after February 1 and is due to end after the holiday;
- If the contract was concluded after February 1, and it turns out during the holidays that a follow-up task will take place. In this case, the summer vacation must be paid retroactively.
With such horoscopes, the ratio of 2.5:1 must be observed. This means: the term of the contract must cover 2.5 times the corresponding school holidays. If summer vacation lasts six weeks, work must continue at least 15 weeks before that until summer vacation wages are paid.
How many fixed-term employment contracts for a material cause are allowed in a row?
Basically there is no limit. Several fixed-term employment contracts can also be entered into one after the other for various reasons. But the employer must not abuse the possibility of a fixed-term contract.
Labor courts can determine the abuse of chain restrictions
When is this the case?
This always depends on the individual case. In the state of North Rhine-Westphalia, fixed-term contracts must be checked ‘benevolently’ to ensure they are not legal after only seven years of operation. If employers conclude a large number of employment contracts in succession during this period – the so-called chain-restrictions – labor courts often find abuse.
What can the victims do in this situation?
In any case, employees should seek advice at the latest when they are awarded fixed-term contracts for seven consecutive years. In some cases it makes sense to do something early, but I recommend not to complain too soon. Since the more fixed-term contracts you have in a row, the more likely the labor court will say: The limit has been crossed, there is abuse here.
Are there differences between public and private schools when it comes to fixed-term employment?
In principle, the same legal provisions apply. The only question is whether the collective bargaining law applies and whether the private school has a well-functioning business council that can check whether fixed-term contracts have been entered into correctly.