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Germany – Company forced to hire temp in landmark ruling

14 January 2013

Companies (staffing buyers) using temporary agency workers for a prolonged period of time may have to hire these workers directly and on a permanent basis. This is according to a recent court ruling by the Higher Labour Court Berlin-Brandenburg, which saw one of the first outcomes of this kind.

A temporary agency employee had filed a lawsuit against a company, complaining about the duration of his job assignment. He said that he had been employed as a temporary agency worker for a long time, but was not offered a permanent position.

Previous rulings had decided in favour of the employer, but in this landmark ruling the court agreed with the agency worker. It said that the company had to offer a permanent full-time employment contract to the plaintiff.

The court spoke of an “institutional abuse of rights” in this case which involved a staffing firm owned by the staffing buyer, i.e. the same party the temporary employee worked for. The judge said that using the temporary worker for what should be a permanent position had allowed the company to pay lower wages.

Temporary staffing in Germany is regulated via the temporary employment act (AÜG), which defines the use of agency work to be of “temporary” nature. The law does not state the maximum limit of a temporary assignment and is therefore open to interpretation.

Critics have argued that the definition of the temporary employment act is not precise enough, allowing firms to use agency workers for longer periods, even years, without having to employ them directly.

This is the first case, in which a court ruled in favour of a temporary employee, raising the issue whether companies should hire temporary workers on an extended basis. 

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