The BAG makes tactical gimmicks in connection with part-time entitlements more difficult for both employees and employers.
In a current decision, the BAG (Judgment of 9 March 2021, 9 AZR 312/20) for part-time entitlement in Section 8 TzBfG (in the version valid until December 31, 2018), stricter rules for dealing with part-time requests have been drawn up.
The case
In a letter dated June 14, 2018, the employee asked his employer to reduce his working hours from 37.5 to 20 hours per week and to distribute it over five days a week from October 1, 2018, in accordance with Section 8 TzBfG. Discussions about the part-time requirement did not take place due to the employee’s illness-related absence. In a letter from his lawyer dated July 27, 2018, the employee requested the employer to decide on his part-time request by August 31, 2018.
On August 2nd, 2018, the employer replied that she would continue to be available for discussions. After a telephone conversation between a legal counsel of the employer and the employee’s lawyer, in which he stated that the employee did not want a discussion about his part-time requirement, the employer announced in a letter dated August 22, 2018 that she would communicate her decision in due time. With a letter dated August 24, 2018 received by the employer on August 29, 2018, the employee withdrew his application for part-time work “with immediate effect”.
In a letter from the employer dated August 30, 2018, she informed the employee that she hereby granted his application for part-time employment. In the letter it says verbatim in excerpts:
“. We refer to your application for part-time employment dated June 14, 2018.
We would like to inform you that we are accepting your application for part-time employment. The part-time work of 20 hours per week you want is not possible in your current position Business Processes for operational reasons.
For this reason we will contact you from October 1, 2018 within. on the position. occupy. In the future, we will guide you in your work as. in the previous pay group. of the collective agreements that apply to us.
According to your request, we will also agree the following contract amendment with you from October 1, 2018:
weekly working time 20 hours
average daily working time 4 hours
Working days Monday to Friday
You continue to take part in the flexible working hours. The company agreement forms the basis for this.
You will receive remuneration in the tariff group for the working hours of 20.00 hours per week agreed with you. in the amount of .
Please refer to your pay slip for any changed surcharges and / or allowances. Any benefits paid above the tariff are voluntary and do not justify any legal entitlement for the future; they can be taken into account in whole or in part in the event of a wage increase or a change in the pay group or years of work.
All other parts of your employment contract remain valid.
Please confirm this agreement to us on the attached duplicate. One copy is intended for your records. . “
The employee said that he was still in a full-time employment relationship and sued for a corresponding determination. He had effectively withdrawn his part-time requirement. The defendant also did not accept his application for part-time employment unchanged.
The decision of the BAG
The BAG decided that the parties have mutually reduced the amount of weekly working hours in accordance with the part-time request made on the basis of Section 8 TzBfG old version.
The employee could not revoke his part-time request, for which the general requirements of § 8 TzBfG old version were met, but was bound to it until August 31, 2018:
- The part-time request of an employee according to § 8 Abs. 1 TzBfG old version is a declaration of intent aimed at changing the employment contract, which can no longer be revoked after receipt (cf. § 130 Abs. 1 BGB).
- According to the wording of the law, the employer can notify the employee of his decision on the reduction in working hours and their distribution no later than one month before the desired start of the reduction in working hours (Section 8 (5) sentence 1 TzBfG old version). Up to this point in time, the employee is bound to his change offer according to § 145 BGB. In this respect, the TzBfG deviates from Section 147 BGB, according to which the application submitted to a person present can only be accepted immediately (Section 147 (1) BGB) and the application directed to an absent person can only be accepted up to the point in time at which the applicant has received the Answer can be expected under regular circumstances (§ 147 Abs. 2 BGB).
- This understanding is confirmed by the systematics of the law: If revocability is assumed without binding effect, the employee could undermine the blocking effect for a new part-time request regulated in Section 8 (6) TzBfG old version. In addition, the fiction of consent provided for in Section 8 (5) sentence 2 TzBfG old version in the event of mere inactivity on the part of the employer presupposes that the change offer continues until the fictional consent occurs and binds the employee.
- The commitment also corresponds to the meaning and purpose of Section 8 (2) TzBfG old version (notice period of three months before the desired start): This should give the employer sufficient time to check the eligibility requirements and to prepare work-organizational or personnel interception measures and serve to avoid Replenishment problems in the companies. The period of time granted to the employer for this and the associated planning security would be limited if the employee could still dispose of it after receiving his change offer.
The employer also accepted the employee’s offer to change the contract:
- If the recipient of a contract offer within the meaning of Section 150 (2) of the German Civil Code (BGB) wishes to deviate from the contractual will of the offerer, he must clearly express this in the declaration of acceptance. Accordingly, a contract with the content desired by the applicant is concluded if the deviation of the declaration of acceptance from the application is not sufficiently clear from the applicant’s point of view.
- The interpretation of the LAG, which can only be checked to a limited extent by the BAG, that the declaration is not to be understood as an acceptance under extensions, restrictions or other changes within the meaning of Section 150 (2) of the German Civil Code (BGB), which is considered to be a rejection of the offer combined with a new application, is not objectionable.
- The employer had not clearly and unambiguously expressed that it would only give its consent to the part-time request with extensions, restrictions or other changes. Already in the opening sentences of her letter dated August 30, 2018 she stated expressly and without any reservation that she would “hereby” grant the application for part-time employment. In the following, she merely communicated the further modalities of the approved part-time employment, all of which complied with the part-time requirement.
- The fact that the assignment of a different activity was not covered by the right of management, but required a change in the contract, did not emerge from the employee’s submission. The same applies to participation in flexible working hours.
- The further statements by the employer on the voluntary nature of benefits above the collective bargaining agreement, etc. as well as the request for “confirmation” “of this[r] Agreement “lacks a sufficiently clear reference to the granting of the part-time application in the first part of the letter.
The fact that the employer’s letter of August 30, 2018 was also received by the employee within the period specified in Section 8 (5) sentence 1 TzBfG old version is not disputed between the parties. But even with a later access, the working hours would have been reduced by virtue of the fictitious consent in accordance with Section 8 (5) sentence 2 TzBfG old version.
Assessment and advice from a consultant
The BAG has drawn up stricter rules for dealing with part-time requests. In addition to the specifically decided questions on the (negative) revocability and the binding period of the part-time requirement as well as the necessary clarity on the employer’s side in the event of a deviation from the part-time requirement, further statements by the BAG also point to a stricter line: Without it mattered in the specific case, it has BAG left open whether it will stick to its previous case law,
- according to which an employee after the discussion according to § 8 para. 3 sentence 1 TzBfG old version may sue in court for a different working time request than he originally asserted if he takes into account new findings from the negotiation phase (see BAG 02/18/2003 – 9 AZR 356/02), as well as
- that the employee does not have to express the distribution request immediately with the request for a reduction, but may postpone it until it is discussed with the employer (see BAG 23.11.2004 – 9 AZR 644/03), and
- whether the employee is prevented from changing his / her request for changes before the conclusion of the “consensus procedure according to § 8 Paragraphs 2 to 5 TzBfG old version” according to § 145 BGB (here the BAG tends not to deny the employee this).
The BAG has made tactical gimmicks in connection with part-time entitlements more difficult for both employees and employers. The case apparently also gave rise to this: from a purely objective point of view, the revocation of the part-time requirement is incomprehensible. In addition, the reasons for the decision make it clear that there has already been a dispute between the parties (marginally, the BAG mentions the following topics: overuse of the employee, vacation, warnings).
The statements of the BAG can be transferred to the current version of § 8 TzBFG and also to the part-time claims from § 9a TzBfG (bridge part-time) and from § 15 para. 7 BEEG.
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