Right to part-time work
An employee whose employment relationship has existed for longer than six months can request the employer to reduce his contractually agreed working hours, Section 8 TzBfG.
According to § 8 para. 2 Sentence 1 TzBfG, the employee must claim the reduction in his working hours and the extent of the reduction at least three months before it begins. In its judgment of October 16, 2007 ( 9 AZR 239/07 ), the Ninth Senate decided what requirements must be met for a specific request for a reduction by the employee in accordance with Section 8 TzBfG. The employee’s request for a reduction is an offer to conclude an amendment contract within the meaning of Section 145 of the German Civil Code (BGB). According to general contract law, such an offer must usually be so specific that it can be accepted with a simple “yes”. The content of the contract change requested by the employee must be clear. In the case of a request for a reduction that leaves the scope of working hours open, the intended content of the contract is not certain.
If the employee does not specify his request for a reduction in working hours and does not grant the employer the right to determine the extent of the reduction, there is no request for a reduction within the meaning of Section 8 Para. 1 TzBfG. On the one hand, the employer does not have to respond to such an unspecified request within the time specified in Section 8 Para. 5 TzBfG respond by accepting or rejecting the deadline. On the other hand, the employer’s reaction to such an indefinite request for a reduction does not trigger the so-called two-year change ban in Section 8 Paragraph. 6 TzBfG. An employee who would like to work with his employer with reduced working hours during parental leave had to do so in accordance with Section 15 Paragraph, which expired on December 31, 2006. 5 Sentence 1 BErzGG (now Section 15 Para. 5 BEEG) submit an application for this. If the employer did not agree to this, the employee had to inform the employer that he was claiming the reduction (Section 15 Paragraph 7 Sentence 1 No. 5 BErzGG). In its judgment of June 5, 2007 ( 9 AZR 82/07 ), the Ninth Senate decided that the employee’s application and notification to the employer should not always be submitted to the employer before parental leave is taken within the meaning of Section 16 Para. 1 BErzGG must be received. The reduction can also be claimed while the employment relationship is suspended as a result of parental leave.
However, the application to reduce working hours during parental leave cannot be made before the employee has made a binding declaration of the periods for which he or she is claiming parental leave, but rather only with this declaration at the earliest. The employer is therefore not obliged to respond to a premature application in accordance with. § 15 Abs. 7 Sentence 4 BErzGG to respond in a fair manner and within a timely manner. However, the employee can make the use of parental leave dependent on the employer agreeing to a request to reduce working hours (parental part-time leave) during parental leave. The so-called declaration of intent that creates conditions that are hostile to the conditions does not stand in the way of this. In the judgment, the Ninth Senate further stated that the presentation of the facts giving rise to the conflicting urgent operational reasons in accordance with. § 15 Abs. 7 Sentence 1 No. 4 BErzGG, and the proof of which is the responsibility of the employer. The employee satisfies his burden of proof if he claims that such conflicting reasons do not exist.
Filling the position with a replacement employee in the meantime may conflict with the application for a reduction. However, something different applies if the employer has already filled the position with a permanent appointment before the start of an employee’s maternity leave period and before the employee’s mandatory use of parental leave. Since with the permanent appointment he either took the risk of “double staffing” or ensured that an increasing work requirement was covered, further explanations of the reason for rejection are required.