Termination of the apprenticeship relationship and (temporary?) Continued employment

Termination of an apprenticeship

A training relationship ends in the sense of Section 21 BBiG with the passing of the final examination and the announcement of the examination results, regardless of the duration of the training contract.

(1) 1The vocational training relationship ends when the training period expires. 2In the case of level training, it ends with the expiry of the last level.

(2) If trainees pass the final examination before the end of the training period, the vocational training relationship ends when the result is announced by the examination board.

(3) If trainees do not pass the final examination, the apprenticeship relationship can be extended at their request until the next possible repeat examination, by a maximum of one year.

Section 21 BBiG

1st guiding principle:

The termination of the vocational training relationship according to Section 21 (2) BBiG before the end of the training period by passing the final examination only occurs if the examination procedure has been completed and the trainee has been informed of the result of the examination. If only the successful completion of an oral supplementary examination in an individual examination area is required to pass the final examination, the early termination of the vocational training relationship occurs with the binding notification of the overall result in this subject.

BAG, ruling v. March 20, 2018 - 9 AZR 479/17

Permanent employment fiction - no termination

If the trainee works in the company after the end of the apprenticeship without further agreements, then it is possible that an open-ended employment relationship, due to the fiction of Section 24 BBiG, arises.

If trainees are employed following the apprenticeship relationship without any express agreement on this matter, an employment relationship is deemed to be established for an indefinite period.

Section 24 BBiG

The prerequisites according to fiction Section 24 BBiG are that the employer or an authorized representative 

  • Has become aware of the termination of the apprenticeship, e.g. by communicating the grades and
  • Has knowledge of the trainee's continued employment
  • or learns of the unwanted further work and does not object immediately.

2nd guiding principle:

The legal fiction of Section 24 BBiG, through which an open-ended employment relationship is considered to be justified when the trainee is employed following the apprenticeship relationship, presupposes as a subjective fact that the trainee or a representative authorized to conclude employment contracts is aware of the termination of the apprenticeship relationship and the continued employment of the apprentice. If the trainee passes the final examination before the end of the training period and the apprenticeship relationship ends afterwards Section 21 (2) BBiG When the result is announced by the examination board, it is sufficient to know that the examination results achieved by the trainee are sufficient to pass the final examination.

BAG, ruling v. March 20, 2018 - 9 AZR 479/17

Effectiveness of a time limit with / without a material reason

In principle, employment contracts following vocational training can be limited in time for a period of up to 2 years without any material reason, according to § 14 Abs. 2 TzBfG, since the apprenticeship does not have any previous employment in the sense of § 14 para. 2 sentence 2 TzBfG.

(2) 1The calendar-based time limit of an employment contract without the existence of an objective reason is permissible for a period of two years; Up to this total duration of two years, a maximum of three times the extension of a calendar-based employment contract is also permitted. 2A time limit according to sentence 1 is not permitted if a temporary or permanent employment relationship has already existed with the same employer.

§ 14 Abs. 2 TzBfG

A basic fixed term is permissible under the conditions of § 14 Paragraph 1 Sentence 1, Sentence 2 No. 2 TzBfG.

Section 14 (1) sentence 1, sentence 2 numbers 1 and 2 TzBfG:

„(1) 1An employment contract may be limited in time if it is justified by an objective reason. 2A factual reason exists in particular if

  1. the operational need for work is only temporary,
  2. the time limit follows after training or studying to facilitate the employee's transition to subsequent employment, ... "

The time limit of an employment contract must in any case be agreed in writing before the start of the activity, otherwise the time limit agreement is ineffective and there is an unlimited employment relationship.

(4) The time limit of an employment contract must be in writing to be effective.

§ 14 Abs. 4 TzBfG

There are legal peculiarities not only at the end of an apprenticeship. You can also read in our articles Protective rights for pregnant workers and the subject Headscarf for teachers.

Mirjam Haubner

Lawyer for labor law in Leipzig

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