The July 2023 edition of our "Monthly Dose" Employment Law on current case law explains the judgments of the German Federal Labour Court (Bundesarbeitsgericht, BAG) dated (1) 9 February 2023 (7 AZR 266/22) on the fiction of an unlimited employment due to granting of remaining vacation entitlements after the expiration of a fixed term employment, (2) 20 December 2022 (9 AZR 266/20) on the statute of limitations on vacation entitlements, (3) 8 December 2022 (6 AZR 31/22) to consider the proximity to pension in the social selection at dismissals due to operational reasons, (4) 29 March 2023 (5 AZR 255/22) to the readjustment of employee’s will to perform his/her job activity in case of default of acceptance wages dismissal lawsuits as well as (4) of European Court of Justice (ECJ) dated 27 April 2023 (case C 192/22) on the forfeiture of vacation entitlements in the event of incapacity to work during partial retirement.
1. No indefinite continuation of the fixed-term employment if vacation is granted after the expiration of the fixed period (BAG judgment dated 9 February 2023, 7 AZR 266/22)
In its judgment of 9 February 2023 (7 AZR 266/22), the German Federal Labor Court (Bundesarbeitsgericht - BAG) had the opportunity to clarify that a fixed-term employment is not continued as an unlimited employment in accordance with Sec. 15 (6) of the German Part-time and Fixed-Term Act (Teilzeitbefristungsgesetz, TzBfG) because the employer unilaterally performs his contractual obligation...
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