More clarity on the prohibition of prior employment in Section 14 Paragraph 2 Sentence 2 TzBfG

The fixed term limit without any objective reason is an excellent and, in principle, legally secure flexibility instrument. However, the controversial interpretation of the pre-employment ban in Section 14 Paragraph 2 Sentence 2 TzBfG has become problematic in the recent past. With a recent ruling dated August 21, 2019, the Federal Labor Court has now given legal practitioners some valuable tips for practical handling.
What is it about? In principle, employment contracts can be limited for a period of two years without any objective reason (Section 14 Paragraph 2 Sentence 1 TzBfG). However, Section 14 Paragraph 2 Sentence 2 of the TzBfG contains an important restriction: the possibility of a fixed-term contract without any objective reason only exists if an employment relationship has not previously existed with the same employer (so-called prior employment ban).
The pre-employment ban in Section 14 Paragraph 2 Sentence 2 TzBfG actually sounds clear. However, there was agreement in the case law that the supposedly clear wording cannot be implemented 1:1. This would sometimes lead to an unreasonable obstacle for both employers and job applicants. The Federal Labor Court solved this dilemma by assuming in 2011 that Section 14 Paragraph 2 Sentence 2 TzBfG, in a constitutional interpretation, only covered previous employment that was no longer than three years ago (judgment of April 6, 2011, Ref.: 7 AZR 716/ 09). However, the Federal Constitutional Court saw this as exceeding the limits of judicial legal training and overturned the Federal Labor Court's decision. However, the Federal Constitutional Court also recognized the problem and ordered the specialist courts to restrict the scope of application of Section 14 Paragraph 2 Sentence 2 TzBfG through a constitutionally compliant interpretation, insofar as the ban on fixed-term contracts without objective reasons is unreasonable. According to the Federal Constitutional Court, such unreasonableness can be assumed in particular if the previous employment was a very long time ago or was of a completely different nature or was of a very short duration (decision of June 6, 2018, ref.: 1 BvL 7/14 and 1 BvR 1375/ 14).
However, this meant that the clear 3-year limit was replaced by a consideration based on individual cases. With regard to the time component, it was now always necessary to check when previous employment was so long ago that the application of the prohibition on previous employment was unreasonable.
It was already clear from the BAG ruling of January 23, 2019 (ref.: 7 AZR 733/16) that such unreasonableness can only exist in exceptional cases. The Federal Labor Court decided that an unfounded fixed-term contract was not permissible if an employment relationship of around one and a half years had already existed between the employee and the employer eight years previously and had a comparable work task as its subject matter. From then on, one had to take into account that eight years between the current employment relationship and the previous employment would not be enough to establish an unjustified fixed-term employment relationship. With its current decision of August 21, 2019 (ref.: 7 AZR 452/17), the BAG has now decided a case differently, but has consistently continued its guidelines for the temporal component. The BAG decided that the prohibition of prior employment in Section 14 Paragraph 2 Sentence 2 TzBfG does not generally apply if an employee is re-employed by the same employer 22 years after the end of his employment relationship. Eight years are usually not enough, 22 years are enough. Exactly where the boundary lies in between is still left to the judgment of the legal practitioner.
Conclusion:
The legal advisor and every company would still do well to act cautiously when applying the ban on prior employment in Section 14 Paragraph 2 Sentence 2 TzBfG. If an applicant has already been employed by the same employer, only very exceptional circumstances can result in a new, unfounded, fixed-term employment relationship being established with this applicant. 22 years between the two employment relationships is certainly a relatively clear case. But no one can say for sure where exactly the limit lies. Maybe 15 years is enough, but it's not certain. In any case, for shorter intervals it is always advisable to refrain from setting a time limit without any objective reason.