This post was also contributed by Dimitri Schaff, Trainee, Norton Rose Fulbright LLP (Munich).
Currently, about one quarter of all employment relationships in Germany are based on part-time models, the proportion of part-time to full-time employees having increased by about 12 per cent since 2001. Furthermore, as a result of the implementation of the EU Part-time Workers Directive 97/81/EC into German law in 2001, an enforceable right for current full-time employees to switch to part-time work exists in Germany. Besides this, employees with children (under the age of eight) may additionally claim the right to part-time parental leave.
Although employers and employees may agree upon a reduction of working time mutually, employees by law have a right to reduce their regular daily, weekly or monthly working time subject to certain conditions. This entitlement not only comprises the mere reduction of working hours but also the specific allocation of work time (e.g. reduction from 40 to 32 weekly working hours with 4-hour days on Tuesdays and Fridays besides the normal working days).
In the case of employees who have been employed for at least six months and where the employer employs more than 15 employees, employees may request a working time reduction from their employer once every two years. However, opposing operational reasons might exclude the employee’s entitlement if they are claimed and properly recorded by the employer. Such opposing operational reasons may be justified for organisational or financial reasons.
In practice, organisational reasons for precluding part-time employment of former full-time employees are hard for employers to establish. Almost exclusively in cases where business concepts or processes are likely to be significantly disturbed, the employer may lawfully reject the employees’ request. Relevant case law indicates, for example, that a complex shift system with adapted machine operating hours may constitute a relevant opposing operational reason on organisational grounds. Employers involved in service-oriented businesses, where customers attach great importance to dealing with a single seller or consultant, may also be able to justify denying an employee’s request.
It is, however, not sufficient for an employer merely to argue that the redistribution of work would cause a high administrative burden. In fact, the employer has to set out and record such opposing operational reasons with regard to each individual situation. Wherever the employer fails to do so and, at the same time, rejects the employee’s request for a working time reduction, the employee in question may institute legal proceedings before the labour court in order to obtain such approval.
Moreover, an approval of a reduction request is deemed granted irrevocably if the employer fails to reject the request in writing one month prior to the intended date set for the start of the work time reduction. Once a working time reduction is granted, however, employees cannot go back to the previous working hours unless both the employer and employee mutually agree.
Apart from the “general” part-time working scenario discussed above, employees are also entitled to request a working time reduction in cases of parental leave. Parental leave may be claimed up to the child’s eighth birthday but may not exceed three years in total. Although both entitlements (general and parental part-time) are broadly similar, they differ in two substantial respects. Unlike the general entitlement, the right to part-time working within the parental leave period is limited in time, entitling employees to increase their working hours after the period of parental leave. Secondly, opposing operational reasons claimed by the employer must be pressing in order to preclude the employees’ rights to reduce working time during parental leave. In practice, this requirement sets the bar very high for lawfully rejecting an employee’s request.
All part-time employees are entitled to the same conditions as to workplace and salary (calculated pro rata) as under their former full-time employment. They are also granted all applicable rights and protections guaranteed under German law. In particular part-time employees are entitled to:
- Keep their workplace and perform the same or equivalent work;
- Protection against unfair dismissal pursuant to the German Protection Against Dismissal Act (KSchG);
- In the case of a working time reduction due to parental leave, special protection against dismissal;
- Continued payment of salary in the case of illness and on public holidays;
- Respective amount of holidays as originally agreed;
- Statutory notice periods.
In all cases it is recommended that employers attempt a consensual solution with employees requesting a reduction in working hours. Amicably negotiating the working conditions with current employees often leads to a more appropriate basis for further collaboration. In cases where a mutual agreement cannot be reached, it is necessary for employers to determine and record the opposing reasons that may lead to the rejection of the employee’s request.