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Entitlement to enter a part-time contract

(Federal Labor Court, decision dated January 20, 2015 – 9 AZR 860/13)

Employees are increasingly making use of their right to demand the reduction of their working hours in accordance with the part-time and temporary employment law (TzBfG). What at first often looks like the beginning of a non-binding discussion about reducing working hours in the future, often quickly turns into a legally effective reduction of the original agreement of full-time employment in practice. The fault lies in the fiction contained in § 8 of the TzBfG, which states that the employee’s working hours are reduced to the extent desired by the employee if the employer has not rejected the employee’s request for reducing working hours in writing up to one month before the desired start date.

Legislators primarily prefer to appeal to the willingness of the contracting parties to negotiate a mutually acceptable understanding between the parties. However, in order to exclude the parties from arriving at a stalemate at the expense of the employee, who must submit their application for part-time work at least 3 months before the requested date, the employer may reject the application up to one month prior to the requested date at the latest. However, only operational circumstances are considered appropriate reasons as grounds for refusal; such as, if reduced working hours significantly impair the organization, the workflow or operational safety or would lead to disproportionate costs. In cases where the employer rejects the application to reduce working hours, the employee must take their case to the Labor Court for approval. As long as this has not been provided voluntarily by the employer or replaced by a final ruling, the original working hours remain as they are.

The courts follow strict criteria when it comes to the content and the date of the employer’s refusal, as a recent decision by the German Federal Labor Court has recently demonstrated once again. The defendant, the employer, had made handwritten changes to the working hours on a form an employee submitted to a daycare which corresponded to their part-time request, and the employer adjusted the hours to the original full-time working hours. Due to this behavior, the German Federal Labor Court (BAG) saw no effective rejection of the part-time request made by the employer. Since the employer had only previously rejected the timely request for part-time employment verbally and the required rejection only took place in writing after the requested starting date of part-time employment, the court proceeded on the assumption that reduced working hours were in effect.

Practical Recommendations:
Every employer should conscientiously deal with requests made by employees to reduce working hours. If an agreement with the employee cannot be reached and operational reasons are the basis for the refusal of the request, then the rejection must absolutely be made and explained in writing no later than one month before the desired starting date of the part-time schedule. A non-explicit or late rejection automatically leads to a reduction in the working hours to the extent requested by the employee. This does not apply if the employment relationship has existed for less than six months or if the employer generally does not employ more than 15 employees. In such cases the TzBfG does not apply.

Thomas Geißler
Author:
Attorney
Thomas Geißler
geissler@buse.de

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