DE | EN | RU (0)69 76 75 77 80Mon. - Fri. from 8am to 8pm, Sat. from 8am to 5pm

German Companies Can Permanently Fill Individual Positions With Temporary Workers

Jun 29, 22 • Employment LawNo Comments
German Companies Can Permanently Fill Individual Positions With Temporary Workers

Temporary employment is the temporary transfer of a temporary worker from a lender to a hirer. The German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, AÜG) assumes a maximum assignment period for the respective temporary worker to the same hirer of generally 18 months (Section 1b AÜG). Subsequently, the temporary worker may not be assigned to the same hirer for at least three months and one day.

Permanent employment position filled by temporary worker

In addition, the German Temporary Employment Act stipulates that temporary employment is only possible on a temporary basis (Section 1 (1) Clause 3 of the German Temporary Employment Act). In addition to the maximum duration of temporary employment provided for in Section 1b of the German Temporary Employment Act (AÜG), it is sometimes argued that temporary employment is not temporary if a lender provides (various) temporary workers to a hirer and the hirer permanently fills a permanent position with these temporary workers.

In its decision of March 17, 2022 (C-232/20), the European Court of Justice (ECJ) now clarifies that, at least within the framework of the Temporary Agency Work Directive (Directive 2008/104), it is not a violation of the “temporary” assignment if the hirer fills a permanent position with temporary workers.

Transfer is the deciding factor, not the employment position

In the proceedings, a temporary worker sued for a declaration that an employment contract existed between him and the hirer, as he had been assigned to a permanent position. The ECJ is of the opinion that the question of “temporary” assignment does not depend on the employment position under the hirer, but on the respective assignment of the temporary worker as such.

Admittedly, the ECJ decides the question of “temporary” assignment only according to the Temporary Employment Agency Directive (RL 2008/104) and not according to the German Temporary Employment Act (AÜG) under national law. The issue therefore remains for the German courts to resolve conclusively. In any event, the ECJ agrees with the partially held view that the characteristic of “temporary” assignment does not depend on the fact that the hirer may only temporarily fill the position with temporary workers, but on the respective deployment of the individual temporary workers.

Our experienced attorneys for staff leasing in Germany will be happy to help you with all your temporary staffing needs.

Continue reading:
Staff Leasing in The High-Wage Sector
Temporary Employment in Germany Automatically Leads to Employment Contract After 18 Months

Ellen Pusch

Ellen Pusch specializes in employment law and inheritance law at our Munich office. She drafts and optimizes employment agreements as well as specific types of termination agreements and assists with restructuring projects and M&A transactions (transfers of undertakings).

>> show profile

Leave a Comment

Your email address will not be published. Required fields are marked with *

WINHELLER Blog via Newsletter

Subscribe to our free newsletter and receive regular updates on German business law by e-mail. (Mandatory fields are marked with *)

German Business Law News (4 times a year)
I would like to subscribe to the selected newsletter and for that purpose give my consent to WINHELLER to process my above mentioned data. I have read the "Information for Data Processing in the Newsletter Subscription". I understand that I can revoke my consent at any time with effect for the future by clicking the unsubscribe button within the newsletter. *