Employers have to be careful when employing substitutes for employees who are on long term parental leave. According to a new labour court decision (Labour Court Cologne, decision as of 15 March 2018 – 11 Ca 7300/17) even the wishes (i.e. not only formal applications) of employees on parental leave who want to work part-time during their leave have to be considered when making arrangements for substitutes.
After expiration of the initial eight to 12 weeks “protected period” (maternity leave - Mutterschutz), employees have the right to take long term parental leave of up to three years on the condition that they raise the child and live together in one household. Long term parental leave may be taken by either or both parents simultaneously or separately from the child’s birth up until their 3rd birthday. Both parents may take their entitlement in up to three blocks at any time in the three year period. Without needing the employer’s consent, up to 24 months of parental leave may be retained and used before the child’s 8th birthday.
Part-time work during long term parental leave is generally permitted. Nevertheless the amount of working hours is restricted to a maximum of 30 hours per week. The entitlement to decrease working hours provides different conditions. The employer must normally employ more than 15 employees, excluding apprentices, and the employee must have accrued more than six months’ service. In order to exercise this right an employee must submit a written declaration of intention to change the contract and must give at least seven weeks' notice before commencing parental leave within the first three years of the child's birth and at least 13 weeks' notice before commencing parental leave during the period between the child's 3rd and 8th birthday. The employer has the right to refuse the request for urgent operational reasons (i. e. the employer has employed a substitute for the employee on parental leave).
The case decided by the Labour Court Cologne concerned a request by an employee to work 25 hours per week in her 2nd year of long term parental leave. Several months prior to the delivery date the employer signed a fixed-term contract with a substitute, working 40 hours per week starting one month prior to the start of the employee's maternity leave (for training purposes) and ending after two years’ parental leave. The plaintiff issued her request for two years long term parental leave with the required seven weeks’ notice in writing. In the same document she informed her employer of her wish to work 25 hours per week in the 2nd year of her parental leave. When she formally applied for reduced working hours during the 2nd year of parental leave her employer rejected the requested, arguing that a substitute had been employed and neither they (the substitute), nor any other employees conducting the same tasks as the plaintiff were willing to reduce their working hours.
The labour court found that the employer must agree to the part-time work request. Whilst it held that employing a substitute can be an urgent operational reason, it identified that it was only urgent in so far as that it related to the employee’s request for long term parental leave and part-time work. The court decided that the employer not only has to consider formal applications of employees, but also must take into account informal announcements of plans and intentions; in the instance case that being the employee's announcement in her written notice requesting parental leave.
III. What the decision means for employers
This decision may have negative consequences for employers when trying to make sustainable arrangements to plan for employee absences due to long term parental leave.
Having to consider any kind of announcement from an employee relating to parental leave and part-time work during parental leave may mean that they cannot employ substitutes on a long-term basis or that they must try to retain ability to contractually adjust their working hours every now and then, which isn't likely to be easily achieved in today's job market. If such circumstances arise employers may need to consider employing adhoc temporary workers to cover absences of pregnant employees or employees on parental leave for effective workforce management.