Irrespective of any contract to produce a work, an employment relationship can emerge even in the case of external employees deployed and bound by instructions if integrated into the business.

Cologne, NRW -- (SBWire) -- 08/26/2013 --GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart http://www.grprainer.com/en explain: The Regional Labour Court of Baden-Württemberg ((Landesarbeitsgericht) LAG) had to rule on a case (Az.: 2 Sa 6/13) concerning the demarcation between a contract to produce a work and the temporary provision of labour. Both claimants worked as independent contractors in an IT systems house and were deployed over ten years in the defendant’s business within the framework of a contract to produce a work. In the view of the claimants, an employment relationship arose from the circumstances of the instant case, namely that they were integrated into the defendant’s business and acted in accordance with their directions. While the court of first instance dismissed the claims, the Regional Labour Court has now found in favour of the claimants.

The Court took the view that the existence of a contract to produce a work cannot be assumed in the present case; instead, this was a case of temporary provision of labour. This is indicated by the fact that the claimants worked over an extended period in the defendant’s business premises and also used its equipment. Additionally, the judges accepted the existence of binding instructions vis-à-vis the defendant.

The defendant argued that this was not a case of temporary provision of labour, as the claimants were not directly instructed through the business; they were allocated to the work contractor via a ticket system, who were then requested by the IT employees. Such a system was indeed contractually agreed upon, yet in practice seldom implemented. Instead, employees of the defendant directly approached the claimants and granted work assignments. The LAG observed that it did not come down to the agreement but rather the actual procedure indicating the existence of binding instructions and integration of the claimants in the defendant’s business. Thus, one had to assume the existence of an apparent contract to produce a work and the formation of an employment relationship between the claimants and the defendant.

A few legal issues often arise in connection with the temporary provision of labour and contracts to produce a work.

Particularly when assessing the existence of an employment relationship, the appraisal of the overall circumstances is decisive. It is advisable to obtain legal advice from a lawyer active in the field of labour law in order to conduct an individual examination of the situation.

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