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LAG Düsseldorf: Day of travel to a professional training is considered as first working day – fixed-term agreement invalid

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An agreement according to which the employee travels to a professional training requested by the employer one day before the start of the first day of the training – which was initially also intended as the start of the contract for a fixed-term employment relationship – leads to the mutually agreed shifting of the start of the employment relationship to the day of travel, according to the Düsseldorf Regional Labour Court (LAG), decision of February 21, 2020 – 10 Sa 252/19.

In the case decided by the LAG Düsseldorf, the plaintiff and the defendant Federal Agency of Migration and Refugees (Bundesamt für Migration und Flüchtlinge) concluded an unfounded fixed-term employment contract for a six-month period. Place of work was Düsseldorf. The parties agreed that on September 5, 2016 as first working day. On September 5, 2016, the plaintiff was to start a professional training in Nuremberg. The plaintiff informed the defendant that, due to the distance to the training location, he would travel the previous to the training location. The travel and accommodation costs were borne by the defendant. For this purpose, the defendant informed the plaintiff by e-mail of the formalities for reimbursement of travel expenses as well as the applicable travel allowances. The parties then agreed to extend the employment relationship until the end of September 4, 2018. The complaint is directed against this agreement on a fixed term. In the plaintiff’s view, his employment relationship had already begun with his arrival in Nuremberg on September 4, 2016. The legally permissible maximum fixed-term of up to two years had therefore already ended at the end of September 3, 2018. The one-day longer fixed term was invalid. His employment relationship would continue for an indefinite period. 

The LAG Düsseldorf upheld the plaintiff’s claim: the interpretation of the agreement reached by the parties showed that, contrary to the information in the employment contract, the employment relationship was not to commence on September 5, 2016, but already on the plaintiff’s travel to the training location on September 4, 2016. In the interpretation of the declarations of intent – besides the deviating date in the employment contract – the further circumstances of the conclusion of the contract must also be taken into account. In particular, the fact that the plaintiff informed the defendant of his earlier arrival on September 4, 2016 and the defendant’s e-mail referring to this, according to the LAG, indicated that the parties had mutually agreed on September 4, 2016 instead of September 5, 2016 as the beginning of the employment relationship.

The LAG considered the travel time as working time with which the employment relationship was consensually put into effect. This was because by traveling to the training course in Nuremberg, which was in the interest of the defendant, the plaintiff had already performed part of the services owed under his employment contract.

The legally permissible maximum duration for a calendar-based fixed-term employment contract of up to two years therefore already ended at the end of September 3, 2018. The agreement of a fixed-term employment relationship for a total duration of two years and one day is invalid. If the fixed-term agreement is invalid, the employment relationship is deemed to have been concluded for an indefinite period.

Case law and the law impose strict requirements on the validity of fixed-term agreements with and without a material reason. In addition to exceeding the legally permissible maximum duration for a fixed-term agreement without a material reason, violations of the mandatory written form of the fixed-term agreement and the so-called prohibition of prior employment can lead to the invalidity of the fixed-term agreement. The latter is of particular practical importance in the case of prior trial employment relationships.

Our experts in our Labour and Employment Law Team will be pleased to assist you on legally compliant agreements on fixed-term employment contracts as well as all related matters.

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