The regulations on parental leave can be found in the BEEG. This applies to all children born or adopted on or after January 1, 2007. The entitlement to parental leave arises from § 15 I, II BEEG. The claiming of parental leave, on the other hand, is standardized in § 16 BEEG.
A. Parental leave
I. Basics
In order to claim parental leave, there must be an employment relationship between the parties. The amount of time during which the work is performed is irrelevant. This also includes temporary and part-time employees, as well as those in vocational training.
During parental leave, the employment relationship continues to exist; only the main obligations are suspended. The employment relationship is suspended and the mutual obligations are not revived until the end of the parental leave. This happens automatically; a declaration by the employee or the employer is not required.
Parents can decide freely how to organize their parental leave in the interest of the family within the permitted duration of the exemption of three years.
They can take turns with childcare, swap off with each other, or take time off from work either all at once or in parts.
II. Utilization
1. Start and application
In order to claim parental leave, the employer must be notified 7 weeks before the start of parental leave for periods up to the child's third birthday, § 16 para. 1 p. 1 BEEG. Section 16 (1) sentence 1 BEEG applies only to the initial claim and not to extensions.
The day of the child's third birthday is the day before the child's third birthday, § 187 II BGB.
2. Requirements
A requirement for entitlement to parental leave is a caring relationship. Those entitled to claim are those who live with their child in the same household and have a close personal relationship with the child. Therefore, contrary to what the name suggests, it is not only the parents who are entitled to take parental leave.
3. Form and deadline
The application for parental leave is a unilateral declaration of intent that requires a recipient, from which it must be clear that the employee is requesting parental leave.
If this deadline is not met, the application is not deemed inadmissible; instead, the start of parental leave is postponed. (Federal Labor Court, February 17, 1994 – 2 AZR 616/93)
The request for parental leave must be made in writing, § 16 para. 1 p. 1 BEEG. The written form requirement is an effectiveness requirement for claiming parental leave (BAG 26.06.2008 - 2 AZR 23/07).
If the employee violates the written form requirement and the employer does not inform the employee of this in order to be able to use it against him or her at a later date, this may constitute an abuse of rights. (BAG June 26, 2008 – 2 AZR 23/07, BAG May 10, 2016 – 9 AZR 145/15)
The requirements of § 126 BGB must be observed, so that a handwritten signature of the employee is required. A declaration by e-mail or fax is not sufficient and is ineffective. (BAG 10.05.2016 - 9 AZR 145/15)
4. Maternity protection period
The prohibition of employment pursuant to § 6 I MuSchG does not preclude the father from taking parental leave immediately after the birth. The revised § 15 II S.3 BEEG now stipulates that periods of maternity leave are only credited to the mother's parental leave entitlement and not to that of the father.
III. Determining and transferring periods
1. Binding effect and consent requirements
For children born after June 30, 2015, a portion of the parental leave (up to 24 months) can be transferred to the period until the child reaches the age of eight.
This enables parents to meet increased childcare needs at a later stage in the child's life.
For children born on or after July 1, 2015, the employee can unilaterally set the parental leave at three stages (§ 16 I 6 BEEG). A distribution over further periods is only possible with the consent of the employer, § 16 I 6 a. E BEEG.
The employee must make a binding decision by the end of the second year of age. This decision is also binding on the parties. The employee can also decide on the use of parental leave in the third year, but is not obliged to do so. The employer's planning security is protected by the obligation to make a decision regarding the first two years. If the employer agrees, further periods are also possible.
Due to the possibility of applying the case law handed down on Section 16 I 5 aF BEEG, the employee is only limited in the choice of sections by the limits of abuse of rights. The employer can also invoke this case law to refuse consent to distribution over more than three phases only after taking into account equitable discretion. As soon as the employee has declared in accordance with Section 16 I 1 No. 1 BEEG for which periods before the child's third birthday he/she intends to take parental leave, there is a mutual commitment with regard to the duration and organization of the working hours. A binding effect is also established if the employee commits to a period of more than two years when the claim is first made. Because of this commitment, the consent of the employer is then required (except in the cases of § 16 III 2-4 BEEG) in cases in which the employee wishes to extend or end the parental leave periods prematurely. (§ 16 III 1 BEEG).
If the employee sets a shorter period than two years, they are also bound by this. In the event of a subsequent request for parental leave, this is no longer an action not requiring consent, but an extension requiring consent (BAG, judgment of October 18, 2011 – 9 AZR 315/10).
The case of whether consent is also necessary if the employee has committed to a period of two years with regard to the duration and position within the meaning of Section 16 I 1 No. 1 BEEG and then wants to remain on parental leave without interruption has not yet been decided by the courts. According to one view, the employer's consent is required under § 16 III 1 BEEG in the event of an extension. It follows both from the wording and from the scheme of the law that the employer must consent to the use of the third year. A conclusive regulation, in which cases the extension can take place without agreement, results from § 16 III 4 BEEG. By implication, this means that an extension to the third year after the birth after two years of parental leave requires the employer's consent.
On the other hand, it should be noted that § 15 II 1 BEEG specifically stipulates the option for an employee to claim parental leave until the child reaches the age of three. The rule that the employee must commit to two years is a relaxation of the previous rule in Section 16 of the German Parental Allowance Extension Act (BerzGG), according to which the employee had to commit for the entire period.
According to the Higher Labor Court of Düsseldorf (Higher Labor Court of Düsseldorf January 24, 2011 –14 SA 1399 10), the wording and overall context of § 15, 16 BEEG must not result in any legal disadvantages. The purpose of the BEEG is to make parental leave more flexible for the benefit of the employee. Employers' interests are sufficiently protected by the two-year limit. It is true that § 16 III 1 BEEG refers to § 15 II BEEG. However, this only clarifies that the maximum duration of three years cannot be extended even with the employer's consent. The duration of parental leave is prescribed by law, so that any agreements extending beyond this are invalid. It is not in line with the legislator's intention to restrict the employee's option to take three years of parental leave by requiring consent. If this had been the legislator's intention, it would have been possible to amend the wording of the law in several reforms. According to the higher regional court's ruling, extending parental leave to the age of three does not constitute an extension under § 16 III 1 BEEG. The appeal against the judgment of the Higher Labor Court Düsseldorf is pending at the Federal Labor Court under the case number 9 AZR 290/11.
The parent can take two periods of leave, each lasting 12 months, between the child's third and eighth birthdays without the employer's consent.
If a period of parental leave has already been taken before the child's third birthday, only one further period may be taken unilaterally. The employer can refuse the third period for urgent operational reasons.
From the fourth section onwards, the employer must decide at his reasonable discretion whether to agree to the employee's request. During the period up to the age of eight, agreement with the employer is necessary. Although the law does not explicitly stipulate grounds for refusal, the employer cannot arbitrarily reject the request for transfer. He must take into account the principles of reasonable discretion, § 315 BGB.
If parental leave is refused without good reason, the employer may be liable for damages under certain circumstances, § 286 BGB. The right to parental leave cannot be contractually waived, § 15 para. 2 sentence 6 BEEG.
2. Extension of parental leave
In addition, the employee who has made a binding commitment can extend it if a planned change in the entitlement cannot take place for good cause (§ 16 para. 3 p. 4 BEEG). Good cause cannot be interpreted here in a similar way to that in § 626 BGB. However, good cause can be assumed if the child would no longer be cared for. In this case, the right to an extension is not dependent on the employer's consent. This extension is also not tied to the deadline of § 16, Subsection 1, Sentence 1, BEEG. If there is no good cause, the employer's decision on the application is made at his reasonable discretion in accordance with § 315 BGB. (Federal Labor Court (BAG) of October 18, 2011, Neue Zeitschrift für Arbeitsrecht (NZA) 2012, 262)
B. Parental part-time work:
I. Basics
The right to parental part-time work is based on § 15 subs. 5, 6 BEEG.
The reduction in working hours does not establish a new employment relationship; instead, it is the same employment relationship, but it is subject to different working conditions. The desired distribution of working hours should be stated in accordance with Section 15, paragraph 7, sentence 3 of the BEEG, but this is not mandatory.
II. Request
Pursuant to Section 15 (7) sentence 2 BEEG, the application for a reduction in working hours must include the start date and the scope of the reduced working hours. This is an offer to reduce working hours, which must be sufficiently specific. With regard to the specificity, the minimum content must be included, the application must include the start and scope of the reduced working hours. In addition, a written application is required, as with parental leave (see above). If the end date is missing, the reduction in working hours ends with the end of parental leave, § 15 para. 6 BEEG.
The employee is not obliged to provide information regarding the distribution of working hours; the employer can then allocate working hours on the basis of his right to issue instructions as per § 106 of the German Industrial Code (GewO). If the employee submits a binding offer, he is also bound by it with regard to the duration and scope of the part-time parental leave. No binding offer is deemed to exist if the employee merely declares the intention to work part-time. An existing part-time job can continue to be done during parental leave, pursuant to section 15 (5) sentence 4 BEEG.
III. Requirement of consent and grounds for refusal
In contrast to the right to parental leave, which can generally be exercised without the employer's consent, the right to parental part-time work is subject to the employer's consent. The eligibility requirements for parental part-time work arise from Section 15 (7) nos. 1, 2, 3, 5 BEEG. The employer must regularly employ more than 15 employees, the legal employment relationship must have existed for more than 6 months and the agreed working hours are to be reduced to 15-30 hours per week for at least 2 months.
The employer can only reject the application for urgent operational reasons (§ 15 para. 7 no. 4 BEEG). Urgent in this context means "almost imperative" or "inescapable", so that a rejection of the request for working hours is only possible in exceptional cases. Under no circumstances is it sufficient to claim that employment within the desired number of hours is not currently possible. Reasons that would justify a termination for operational reasons according to § 1 para. 2 KSchG must also be taken into account in the sense of § 15 para. 7 no. 4 BEEG. The employer must then assert the permanent loss of the need for employment.
This refusal must be declared in writing within four weeks of the application being submitted, stating the reasons (Section 15 (7) sentence 4 BEEG). If no written refusal is issued in good time, consent to the requested parental part-time employment is deemed to have been granted.
C. Switching from parental leave to parental part-time work:
An application for part-time work can also be made during parental leave, and the employer and employee should reach an agreement within four weeks. If no agreement can be reached, the employee has an enforceable claim to a reduction in working hours and a change in their distribution during the period of parental leave under the conditions of § 15, para. 7 BEEG. (BAG February 19, 2013 – 9 AZR 461/11). A distinction must therefore be made here between the consensus procedure (§ 15, Subsection 5, Sentences 1 and 2 BEEG) and the entitlement procedure (§ 15, Subsection 5 in conjunction with Subsection 6 BEEG).
In the context of the consensus procedure in § 15 para. 5 BEEG, the legislator assumed that the parties are able to reach an agreement by mutual agreement. An agreement should be reached within a settlement period of 4 weeks. At this point in time, the employer is entitled to refuse without stating reasons. The application can therefore be submitted with the declaration that the employee is claiming a reduction in working hours for the duration of the parental leave in accordance with Section 15 (7) sentence 1 BEEG.
This is similar to the request made in the claim proceedings. The employee submits this request for a reduction in writing to the employer. The exact eligibility requirements can be found in § 15 (6), (7) BEEG. If the employer refuses, the employee can have the employer's decision reviewed in court.
D. Premature termination of parental leave:
The employer's consent is required for the early termination or extension of parental leave, § 16 para. 3 p. 1 BEEG. Therefore, early termination of parental leave is generally only possible with the mutual consent of both parties.
Furthermore, it is possible to extend parental leave within the limits of what is legally permissible. Pursuant to § 16, Subsection 3, Sentence 2, BEEG, the employee may only refuse the early termination in writing for the reasons stated therein within four weeks due to urgent operational requirements. The employee must prove that the reason for hardship exists, whereas the employer must prove the contrary of urgent operational requirements. According to case law, the concept of conflicting operational reasons is to be interpreted narrowly and should only apply in exceptional cases. The employer must consider all possibilities for reorganization and still be able to demonstrate that the early return of the person on parental leave is not possible. It is not sufficient as the sole reason if the employer states that they have filled the position with a temporary employee for the duration of the parental leave. The fixed-term employment contract can be terminated by the employer in accordance with § 21 (4) BEEG with a notice period of at least three weeks, but at the earliest at the end of the parental leave, if the parental leave ends prematurely without the employer's consent or if the employer is not allowed to refuse this premature termination of parental leave, § 21 (4) BEEG. The employee must have been notified of the early termination of parental leave. This regulation is intended to protect the employer from the risk of having to employ both the person returning from parental leave and the substitute if the parental leave is ended prematurely.
Checklist for the contractor's extension request
- Contractor must justify hardship
- No notice period required; it is sufficient, as with the initial notification of parental leave, that the employer receives the notification of extension, whereby
- description of the facts that constitute good cause must be given special care.
Checklist: Premature termination by the employee
- Employee must justify hardship
- Wait for the employer's reaction, as the employer can
- can refuse in writing
- and must provide written reasons for the rejection within four weeks
Checklist: Contractor's application for a reduction in working hours
- Employer employs more than 15 employees
- Employment relationship has existed for more than six months
- The reduction in working hours should be between 15 and 30 hours per week for at least three months.
- There must be no urgent operational reasons for opposing the claim
- Note the deadlines for application: six weeks after the maternity leave, otherwise seven weeks.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.