Two court decisions regarding the claim for part-time work and the entitlement to leave when working part-time lead to organizational challenges for the employer.
Individuals in companies with more than 15 employees are able to make a claim to work part-time. This claim can only be rejected if any conflicting operational reasons exist.
The regional labor court in Cologne (reference number 7 Sa 766/12) decided that a request for part-time work cannot be rejected by giving the reason that this would not be compatible with shift work. In the case at hand the court argued that Employers must organize the company in a way that enables part-time employees to end their work during a running shift. To which extent employers need to adjust the shift work of their businesses depends on the reason for the part-time application. In this case, the employee wanted to adjust his work-life balance in order to spend more time with family. The court considered this reason to be a social goal which imposes higher demands of what employers have to bear. The case resulted in the employer introducing extra shift handovers because the part-time employee’s end of the shift was not congruent with the end of the regular shifts.
The court’s decision is surprising for two reasons: 1) That the court weighed up the reason for the part-time request against the conflicting operational reasons, because statute law does not offer this approach. 2) Due to the court’s denial of the general assumption that incompatibility with shift work should represent a sufficient reason to request part-time work shifts not to end in the middle of regular ones. The decision is particularly interesting because it depicts just how highly courts value the employee’s right to work part-time as well as the extent to which organizational flexibility is expected from the employers to provide the opportunity of part-time work.
In a second court decision the European Court of Justice (ECJ) (reference number C-415/12) dealt with the issue on whether reducing the weekly working hours affects already existing holiday entitlements. In this case the employee was entitled to 29 days of paid leave remaining from before he had started working part-time. After reducing the weekly working time from 5 to 3 days, the employer reduced holiday entitlement to 17 days accordingly, claiming the employee had - due to his 3 days a week working schedule - the same period of time available for holidays.
The ECJ ruled the reduction of the holiday entitlement by the employer unlawful, so that – despite the 3 days working schedule – the employee is still entitled to 29 days of paid leave which remained from before he had started working part-time. As a consequence the employee therefore is entitled to a period of 9 weeks and 2 days paid leave opposed to a former 5 weeks and 4 days of holiday.
In terms of the received payment during the holidays, the court’s decision may be understandable. However, in terms of the actual duration of paid leave, the court misjudges that as a result of the reduction of the weekly working days from 5 to 3 days the employee does not lose any holiday-time if the entitlement is cut in accordance to the reduced number of weekly working days. In fact, the entitlement depends on the actual period of time awarded rather than the number of leave days.
Due to its significance in practice, employers should be aware of this decision. The question at hand especially becomes relevant at the end of parental leave. In order to avoid the extension of the duration of paid leave from periods before the employee reduced the working time, it is advisable to ensure that the employee’s entitlements to paid leave are reduced before the employee starts working part time respectively before entering parental leave. Moreover, it is well worth considering to implement clauses in employment contracts stating that existing holiday entitlements which exceed the minimum statutory leave are automatically being reduced in accordance with the reduction of the working time.