The claimant had been working for the defendant hospital as a temporary worker since 1 August 2008. Against the background that the German Temporary Employment Act only provides for assignments that are limited in time, the claimant argued that an employment relationship between her and the hospital had been created by law because of her long-term deployment in the hospital.
The German Federal Labour Court dismissed the claimant´s charge, confirming an earlier decision of December 2013. According to this decision, the long-term assignment of temporary workers does not bring about the creation of an employment relationship between the hiring company and the temporary worker in so far as the hire company is authorised to provide the services of employees. The judges reasoned that the German Temporary Employment Act does not provide for the creation of an employment relationship in such situations and that the legislator had consciously refrained from stipulating such a legal consequence in the course of amending the German Temporary Employment Act in 2011.
Nevertheless, it should be noted that an employment relationship between the hiring company and the temporary worker is automatically created by law if the hire company does not have a valid authorisation to provide the services of employees. Therefore, if it is intended to deploy temporary workers, it should be verified that the hire company holds the relevant authorisation. Also, the legal situation may change in the near future as the government announced new legislation for early 2015 which may well provide for the creation of an employment relationship in cases of the long term provision of the services of temporary workers.
For additional information on the legal situation concerning temporary workers in Germany please see Lydia Brücklmeier´s post dated 9 January 2014.