In a decision of the BAG dated 7 April 2012 (docket no. 3 AZR 280/10), the BAG addressed the question of the calculation of a company pension in case of reduced working hours in the run-up to retirement ("pre-retirement part-time employment", ["Altersteilzeit"]). The pertinent pension regulation did not provide for pre-retirement part-time employment before leaving the company upon reaching retirement age. Rather, the regulation merely contained a provision regarding the amount of the pension for part-time employees, stipulating an adjustment of the company pension to the worker's degree of employment over the last 120 months before leaving the company.
The BAG decided that the question of whether or not pre-retirement part-time employment should also be taken into account in the calculation of the company retirement pension depends upon the interpretation of the corresponding company pension regulation. A special provision on the calculation of the company pension agreed for part-time employees therefore is not applicable to employees who make use of the pre-retirement part-time employment option. These pre-retirement part-time employees should not be treated in the same way as other part-time employees. Consequently, the calculation of the company pension is based on the regulation that has been agreed for full-time employees; accordingly, the claimant's case was granted, as already in the previous instances.
Although the BAG's decision is based on the specific interpretation of an individual pension promise, which means that one cannot draw from the judgement the general conclusion that cuts in company pensions are generally impermissible for pre-retirement part-time workers; our attention nevertheless remains focused on the fact that, especially in restructuring cases, special forms of employment which are of relevance to the remuneration are frequently agreed, but can only be reflected in pension regulations without problems in just a few cases. Here, a careful examination is required so that any necessary adjustments can be agreed straight away.
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.