I. Initial situation
According to the legal wording, limitation without material reason for a period of up to two years is only permissible if an employment relationship of definite or indefinite duration did not already previously exist with the same employer (§ 14 II 2 TzBfG [Act on part-time work and fixed-term employment contracts]).
The 7th Senate of the BAG reads into this standard in well-established jurisdiction (for the first time: 06.04.2011 – 7 AZR 716/09) that »previous employment« only exists if it was not longer than three years ago. The BAG held that the statute did not provide for an absolute prohibition on previous employment, especially as its objective, to prevent limitation chains, did not require this. On the contrary, a restrictive interpretation was even constitutionally required, since employees were otherwise threatened by an obstacle to employment that disproportionately restricted the freedom they had been guaranteed to choose a profession. A constitutional interpretation meant that only a waiting period of three years could apply for the legally regulated prohibition on previous employment.
II. Different jurisdiction
In contrast, the LAG Baden-Württemberg never tires of criticizing this jurisdiction. Again, the LAG decided on 13 October 2016 (3 Sa 34/16) that the legal language containing the wording »already previously« was unambiguous and that an interpretation beyond the clear wording was not called for. According to the explicit will of the legislator, limitation without material reason of an employment relationship between the same parties should only be permissible once. Since an appeal was lodged against an earlier decision to this effect by the LAG Baden-Württemberg (21.04.2014 – 7 Sa 64/13), the ball is in the BAG's court again (7 AZR 196/14). A decision is currently still to be made.
Neither is Braunschweig Labor Court following the argumentation of the BAG and does not consider the prohibition on previous employment for limitations without material reason to be limited in time (decision of 03.04.2014 – 5 Ca 463/13). Unlike the LAG Baden-Württemberg, it takes the view, however, that the prohibition on previous employment is unconstitutional on the basis of a violation of the constitutionally guaranteed freedom to choose a profession and the principle of equality (art. 12 and 3 of the German constitution), precisely because it does not contain a time restriction – as the BAG reads into it. The Braunschweig Labor Court therefore submitted the proceedings to the Federal Constitutional Court (BVerfG) for a decision on the constitutionality of the law (§ 14 II 2 TzBfG). A decision is still to be made here as well.
III. Future approach
Both the upcoming decisions of the BAG and the BVerfG are eagerly anticipated. Since no concrete grounds for the »three-year limit« still currently read into the law by the BAG can be found in the wording of the law or in its justification, history or system, an about-turn in the jurisdiction is not inconceivable.
In any case, employers are advised to not only rely on the jurisdiction until now, since the possibility cannot be ruled out that further lower instance courts will oppose the current interpretation by the BAG (with good arguments). It therefore makes sense to also examine previous employment from longer ago in the hiring process. If such employment exists, possible material reasons for the desired limitation should be considered and kept in mind at any rate. In view of the far-reaching consequences of an ineffective limitation (existence of an employment relationship of indefinite duration!), no risks should be taken here and a close eye should be kept on the development of this topic.