What happens when temporary workers are laid off

 
Termination and time limit
for temporary work


Temporary work is regulated in the Temporary Employment Act (AÜG). The protection against dismissal according to the Employment Protection Act & nbsp (KSchG) also applies to temporary workers. Are theredistinguish between two legal relationships:

  • the employment relationship of the temporary worker to his employer (temporary employment agency) and
     
  • the contractual relationship the temporary employment agency (lender) to the deployment company (hirer).
If the hirer terminates the contractual relationship with the temporary employment agency, only the employment of the temporary worker in the company ends. The hiring company is even obliged to reduce the temporary work in its own company before it can terminate its own employees (core workforce) (on this LAG Hamm, judgment of 05.03.07).

The employment relationship between the temporary worker and the temporary employment agency continues; it is not affected by the termination of the contract. If the temporary employment agency wants to terminate the employment relationship because it has no subsequent employment for the temporary worker, the general rules for termination of the employment contract by the employer apply to this termination.
  • Information on termination of the employment contract by the employer


  • In particular, the general protection against dismissal in accordance with the Protection against Employment Act & nbsp (KSchG) applies to such a termination. According to this, the employer needs a reason for termination if he has more than 10 employees (no protection against dismissal in small businesses) and the employment relationship has existed for at least 6 months (no protection against dismissal during the waiting period). Such a reason for termination exists if the termination is necessary for urgent operational reasons because the employer can no longer employ the employee (operational dismissal).

    The Federal Labor Court has ruled on the operational termination of a temporary employment relationship (judgment of May 18, 2006), thatshort term Missing orders cannot justify the termination. A reason for termination only exists if the temporary employment agency can prove that for the temporary worker permanent no new application is to be expected. As a rule, a temporary employment agency at the end of 2008 / beginning of 2009 is unlikely to be able to provide this evidence. The Federal Association of Temporary Employment (BZA) assumes instead that temporary agency work will "benefit from the crisis" and that the number of temporary agency workers will increase from 750,000 at present (end of 2008) to over a million by 2010.
  • Volker Enkerts (President of the BZA), Hamburger Abendblatt from December 15, 2008


  • The temporary worker has the option of having the effectiveness of the termination checked by a court; for this he must file a dismissal protection action with the labor court within 3 weeks of receiving the dismissal. After this period of action has expired, the employee can no longer plead that the termination was ineffective.
  • Information on the dismissal protection lawsuit


  • If the prerequisites for an operational dismissal are met, thenThere has recently also been an option in temporary work for the employer (i.e. the temporary employment agency) to apply for short-time work allowance in order to avoid the operational dismissal.
  • Information on short-time work allowance in temporary work


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    A termination is only required in the case of an unlimited employment relationship. If the temporary employment relationship is limited, it ends with the expiry of the fixed term without the need for notice. However, this requires an effective time limit.
  • Information on the fixed-term employment relationship


  • The right of time limitation distinguishes between Limitations with and without a material reason. A time limit without a material reason is usually only effective for a total of 2 years; it is not permitted if the employee has already been employed by the employer.

    For temporary work, the question arises in particular whether there is a material reason for the fixed term; then the restrictions just mentioned do not apply. Specifically, temporary work is about whether the existence of the temporary employment relationship can be linked to a specific assignment; with the result that when the hirer terminates the contract, the temporary employment relationship ends automatically. Such a link could be attached to the factual reason "temporary operational need for work" (Section 14 (1) No. 1 TzBfG).

    For this, however, it does not depend on the needs of the hirer, but on the needs of the employer (i.e. the temporary employment agency). The coupling would only be conceivable if it was already clear when the temporary employment contract was signed that there would be no follow-up orders. In case of doubt, this would have to be proven by the temporary employment agency. But even then, such a link can be unlawful because of circumventing the protection against dismissal. However, this question only arises if the temporary employment relationship is actually limited in time (for a material reason).

    The temporary worker has the option of having the effectiveness of the time limit checked by a court; for this he must file an action for an unlimited period of time at the labor court within 3 weeks of the expiry of the time limit. After this period of action has expired, the employee can no longer plead that the time limit was ineffective.
  • Information on the indefinite suit


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    Further information on agency work / temporary work:
  • Temporary employment contracts
  • Employee information on temporary work (agency work)
  • Judgments on temporary work




  •  
    Telephone counseling for employees:
    Mondays, 5 p.m. - 8 p.m.
    Tel. 0711/39 66 405
    Attorney Arne Maier
    Am Kronenhof 2, 73728 Esslingen
    www.rechtsrat.ws