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
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.
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