Much to the consternation of many employers, the German legislature enacted a statute in 2001 that gave employees the legal right to demand from their employer that the employee work only on a part-time basis. Though employers have been given some statutory legal arguments against such requests — most notably, employers can deny an employee’s request if operational reasons warrant such a denial — it was feared that courts would give only lip service to this argument. However, as of late, court decisions have clarified employers’ rights, and there has even been a tendency to limit employees’ rights to some degree.
On December 9, 2003, the Federal Labor Court held that an employee who asked to be put on part-time status could not force an employer to hire an additional full-time employee if another part-time employee was not available. The employee could also not demand that other employees work overtime so that he could work part time. The employee also tried to require the employer to hire a temporary employee. This request also did not meet with success since the employer had successfully argued to the court that the employer did not regularly engage temporary employees. The Federal Labor Court also had decided already in September 2003 that an employer may deny an employee’s request for part-time employment if it is the employer’s policy to have every customer be serviced by one sales person (such an argument by an employer would not be persuasive, however, if the employer’s hours of operation were vastly different from the hours generally worked by a full-time sales person). Similarly, the Federal Labor Court decided that the staff member of a kindergarten could not successfully demand that she work only on a part-time basis as the teacher’s part-time status did not fit in with the kindergarten’s organizational plans.
The above decisions, which come from various sectors and are based on different situations, make clear that employees do not have carte blanche to be put on part-time status. Additionally, the Federal Labor Court does indeed recognize that employers do not have to put forth a "significant" or "compelling" reason to deny a request for part-time work. Instead, a "rational and justifiable reason" will suffice. Though a court will review whether an employer is abusing its leverage if it rejects an employee’s request, and of course whether the reason given by the employer truly exists, a court will generally refrain from reviewing the reason given by the employer from an operational point of view.
The valid rejection of a request for part-time employment presumes that the working hours as requested by the employee are not reconcilable with the employer’s organizational plans, and that if the employee’s request were to be honored, this would have an appreciable adverse effect on the employer’s business interests. The court must determine whether the employer is unable to reconcile his business interests with the employee’s interests. Reasons given to deny an employee’s request for part-time status with success include that the company’s organization would be adversely affected, the company’s organizational procedures and security would be negatively impacted or the employer would incur unreasonably high costs as a result of the employee’s part-time status.
Even if the business interests for rejecting a request seem clear to an employer, he should not curtly reject an employee’s request to work part time. The employer is required, by statute, to try to reach a mutually-acceptable arrangement with the employee. However, according to the Federal Labor Court, an employer’s failure to abide by this requirement will not automatically invalidate an employer’s rejection. Regardless, if the employer abruptly rejects the employee’s request, then the employee may be able to argue successfully to a court that he would have been able to arrange his part-time status to the satisfaction of the employer if the employee had been given an opportunity to have a true exchange of ideas with the employer. Employers should ensure that an employee does not have this argument available to him. Also, and maybe even more significantly, there have been a few cases where an employee was able to push through his request for part-time status by obtaining an injunction against an employer.
One point that employers should not ignore: According to the Federal Labor Court, an employer may waive the statutory three-month notice period that employees must observe before beginning to work part-time. It is presumed that an employer has "waived" this three-month period if he begins discussing with the employee who has not observed the three-month period the reasons as to why the employer may not be able to honor the employee’s request for part-time status. In other words, an inexperienced employer, or one who has not obtained adequate legal advice, may not appreciate the significance of pointing out to an employee that the three-month period must be observed before engaging in discussions with the employee about the substantive aspects of the request for part time. It can only be hoped that the Federal Labor Court will review the practical effects of this decision as it actually dissuades parties from engaging in discussions with one another.
In the meantime, employers should consider whether they can devise a plan now to reject an employee’s future request for part-time status by using the argument that it would negatively affect the company’s operations, as this argument is not subject to judicial review. This could be helpful to employers as there is nothing more convincing to a court than a document that was clearly prepared prior to any dispute arising.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.