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.