In Kücük v Land Nordrhein-Westfalen, the ECJ has held that employing a worker on successive fixed-term contracts, to continually cover different absent workers is not, in itself, a breach of the EU Framework Directive on Fixed-term Work (No.99/70).
K worked as a clerk in the Cologne district court under 13 fixed term contracts between July 1996 and December 2007. The purpose of all of the contracts was to provide cover while other clerks were absent on maternity leave etc. Under German law, consecutive fixed term contracts are permitted where there are objective grounds, such as replacing an absent employee. K claimed that this provision breached the EC directive on fixed-term work. The German Court asked the ECJ whether the need for replacement staff is a valid objective reason for the use of consecutive fixed term contracts and if so, whether this is still the case where the need for replacement staff is in reality permanent and could be met by hiring another permanent employee.
The ECJ found that although the EC Directive is intended to prevent abuse through the successive use of fixed-term contracts, it enables Member States to provide for objective reasons justifying their renewal. Using a fixed term employee to cover absent staff may, in principal, constitute an objective reason justifying their renewal. It is within the remit of the national courts to satisfy themselves that the renewal of fixed term contracts is actually intended to cover temporary need and is not in fact being used to meet permanent needs.
The ECJ further noted that the mere fact that an employer may have to employ temporary replacements on a recurring, or even permanent basis and the need could be met by hiring employees on contracts of undefined duration, does not mean that the use of successive fixed-term contracts instead, is in breach of the EC directive. It is for the authorities of the Member States to take account of all circumstances of the case, including the number and cumulative duration of the fixed-term employment contracts concluded in the past year with the same employer.
In the UK the EC directive has been implemented by the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Under Regulation 8, employees who have been continuously employed for more than four years, on a series of successive fixed term contracts, are automatically deemed to be permanent employees, unless the continued use of a fixed-term contract can be objectively justified. Therefore a temporary need to replace permanent staff may in principle constitute this objective reason, but the UK Courts will need to be satisfied that, in all the circumstances, the renewal of the fixed-term contract in question, is intended to cover temporary needs and is not in fact being used to meet permanent needs.
In answering this question the Court should consider all of the circumstances, such as the number of successive contracts a worker has had requiring him or her to carry out the same work, and whether the renewal of the fixed-term contract responds to a genuine need, which is an appropriate and necessary means of meeting the objective pursued.
Best Practice
When employing staff on a series of successive fixed term contracts, it is important to consider the justification for doing so and whether there is in fact a permanent need, which that employee is fulfilling which could ultimately result in them obtaining permanent employment. Employers should also consider ensuring that the purpose of the contract (e.g. to fill a temporary absence etc.) is made clear to the employee at the outset of each contract.
For more information, please contact Naseem Nabi on 0117 314 5630.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
