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Part-time employment during part-time parental leave

By judgement of 19 February 2013 (docket no.: 9 AZR 461/11), the Federal Labour Court confirmed that an employee can demand the reduction of his/her working hours twice during parental leave. This also applies if the employer and employee reached an agreement at the beginning of the parental leave on the scope of the working hours but subsequently extend the parental leave. The agreement does not count as one exercise of the double right to reduce working hours.

During parental leave, employees can work part-time of up to 30 hours per week. In this connection, the employer and employee should amicably agree on the scope and distribution of the working hours. Should they be unable to reach agreement, the employee can demand a total of two times during the entire period of the parental leave a reduction of the working hours existing prior to the parental leave (Sec. 15 paras. 6 and 7 German Federal Act on Parental Benefit and Parental Leave [Bundeselterngeld- und Elternzeitgesetz, BEEG]). The employer can only oppose this by representing that urgent operational requirements oppose the reduction.

The Federal Labour Court has now decided that the double possibility of reducing working hours is not “used up” in that the employer and employee have amicably agreed on a reduction. An employee had reached an agreement with her employer at the beginning of her two-year parental leave on the reduction of her working hours: she was initially to work 15 hours a week, after a specific time this would then be increased to 20 hours per week. Shortly before the expiry of the two years the employee claimed a further year of parental leave and claimed the right to continue working 20 hours per week from her employer. The employer refused, claiming that the employee’s right to demand the reduction of her working hours and to judicially enforce such demand had been exhausted through the amicable regulation reached at the beginning of the parental leave.

Whilst the previous instance ruled in the employer’s favour, the Federal Labour Court ruled that the amicable reduction of the working hours has no influence upon the employee’s right to be able to twice enforce her wish to reduce her working hours. Accordingly, after the end of the period covered by the first agreement the employee can still demand the reduction of her working hours and in case of doubt judicially enforce it.

The reasoning of the Federal Labour Court is still awaited; the decision is presently only available as a press release. However, as a result of the decision it is already clear that employees have great flexibility in how they can structure their work during parental leave. The employer’s possibilities of safeguarding its interests through specific and - to the extent possible - long-term personnel planning, on the other hand, are severely restricted.

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