LAG Thuringia, judgment of 24.07.2024 - Waiting period under the KSchG: Adding up periods of employment?

Protection against dismissal under the Dismissal Protection Act (KSchG) only applies after the so-called waiting period of six months has expired. The legal hurdles for dismissals are therefore significantly lower within the waiting period. But what applies if employees have been employed by an employer for a total of more than six months on the basis of various contracts before being dismissed?

The Thuringia Higher Labor Court has now ruled that periods of employment are not to be added together if there is a clear break between the employment relationships.  

I. Facts of the case

The Thuringian Higher Labor Court (LAG) had to decide on the validity of two dismissals.

The starting point of the legal dispute was a selection procedure of the defendant for the position of concept and music dramaturge. In the course of the selection procedure, the defendant decided to give the plaintiff and another candidate tasks to try out. To this end, the defendant and the plaintiff concluded a fixed-term service provider and consultancy agreement in February 2021. This provided for weekly, flat-rate remuneration.

After several trial assignments and an interruption due to illness, the defendant initially opted for the other candidate. However, after the latter declined, the plaintiff was hired as an employee on 17.05.2021.

Around eight months after the start of the trial work, but only five months after signing the employment contract, the defendant initially terminated the employment relationship in a letter dated 25.10.2021. However, as this letter was only signed by the director, who was not authorized to terminate the employment contract, the defendant terminated the employment relationship again on 11.11.2021 as a precautionary measure.

The plaintiff filed an action for protection against dismissal and claimed that the employment relationship had already begun with the first contract in February 2021, meaning that the German Protection Against Dismissal Act (KSchG) applied. She argued that she had been fully integrated into the defendant's organizational process from February 2021 onwards and was employed on a dependent basis. The service and consultancy contract was a sham contract to deceive social insurance companies; an employment relationship actually existed.

The defendant countered that the contract of February 2021 was a fixed-term consultancy and service contract that merely served as a basis for trial work in the application process. Only after the rejection of the initially selected applicant in May 2021 was an employment relationship established with the plaintiff.

II Reasons for the decision

On appeal, the Thuringia Higher Labor Court confirmed the decision of the Erfurt Labor Court.

The court ruled that although the first dismissal was not effective due to the lack of authority of the director, the dismissal of 11.11.2021 was effective.

In particular, the LAG clarified that the employment relationship only began with the signing of the employment contract on 17.05.2021. The previous fixed-term consultancy and service contract did not establish an employment relationship, but only a freelance employment relationship, which was invoiced and expressly allowed for the possibility of other activities. The plaintiff was unable to provide sufficiently substantiated evidence that she was already personally dependent and bound by instructions from February 2021.

In addition, the court further pointed out that even if one were to assume an employment relationship in favor of the plaintiff from February 2021, the periods of employment should not be added together. The first employment had been temporary and had also not been factually related to the later employment relationship from May 2021. In particular, there was a caesura, as the defendant had initially opted for another applicant. A combination of the periods of employment to fulfill the waiting period pursuant to Section 1 (1) KSchG was therefore out of the question. Consequently, the probationary period termination was effective.

III Practical advice

The judgment makes it clear that the actual start of the significant employment relationship is decisive for the applicability of the Dismissal Protection Act. Previous freelance employment, trial work or other employment will only be taken into account if they are closely related in terms of time and subject matter to the subsequent employment relationship. A break - such as the selection of another applicant - interrupts this connection.