On January 1, 2019, the “Act on Further Development of Part-Time Employment Law” (Gesetz zur Weiterentwicklung des Teilzeitrechts) entered into force in Germany.
The new legislation implements considerable changes to the German Part-Time and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz ) and introduces (i) an entitlement to work part-time on a temporary basis, coupled with (ii) an entitlement to return to full-time employment (so-called “Bridge Part-Time Work” (Brückenteilzeit)).
German employment law already grants employees the right to work part-time under specific conditions, e.g., the right to take (temporarily) parental leave under the German Act on Parental Allowance and Parental Leave (Bundeselterngeld- und Elternzeitgesetz), or to reduce (temporarily) working hours in order to care for relatives under the German Home Care Leave Act (Pflegezeitgesetz) and the German Family Care Act (Familienpflegezeitgesetz). In addition, the German Part-Time and Fixed-Term Employment Act provides for the right to reduce the mutually agreed working hours for an indefinite period of time.
Driven mainly by personal reasons, a desire for greater autonomy in daily life as well as the striving for an appropriate “work-life balance”, more and more employees are working part-time. In 2017, almost 30% of all employees in Germany were working part-time.
However, not all of these part-time employees want to remain in part-time, but many would rather work full-time (again), which makes them feel trapped in this situation (so-called “part-time-trap”). So far, German employment law did either not grant a right to return to a full-time position or, if such return right existed, specific personal reasons were required to request part-time employment in the first place. Thus, the gap between supply and demand for part-time work became obvious.
The German legislator now intends to grant employees the right to return to full-time employment after working part-time for a certain (limited) period of time, irrespective of any personal requirements. With a view to the new “Bridge Part-Time Work”, the German government stated: “Whereas employees should have the possibility of working in part-time voluntarily, they should not have to remain in part-time involuntarily”.
“Bridge Part-Time Work”: Scope, Duration and Request Procedure
An employee is entitled to “Bridge Part-Time Work” (i.e., working part-time for a limited period of time and then returning to working full-time again) in case (i) his/her employment relationship is in place for a time period longer than six months (i.e., a period equal to the waiting period required to benefit from protection under the German Dismissal Protection Act (Kündigungsschutzgesetz)), and (ii) his/her employer regularly employs more than 45 employees in total. In this respect, each employee employed at the respective employer (irrespective of part-time or full-time, limited or unlimited in time, except for trainees) is taken into account.
Due to this headcount threshold, presumably about 40% of all employers in Germany will not be affected by the scope of “Bridge Part-Time Work”.
The Duration of “Bridge Part-Time Period”
The period of reduced working time under “Bridge Part-Time Work” must be at least one year and may not exceed five years (the “Bridge Part-Time Period”). The contemplated duration has to be determined by the employee in advance. The requirement of a prior “agreement” on a specific time period does not only intend to grant employees the assurance to return to a full-time position after such period, but shall also provide planning certainty to both employers and employees.
The Request Procedure
The employee needs to submit his/her request (by e-mail is sufficient) at least three months prior to the beginning of the contemplated “Bridge Part-Time Period”.
The new legislation does not specify how the working time is to be reduced and, in general, it is in the employee’s discretion to decide on how to implement his or her “Bridge Part-Time Work”. For example, the employee may prefer to create additional days off, while continuing to work full-time for the rest of the week. The employee may also leave it up to the employer to decide about the modalities of implementation of the reduced working time at its reasonable discretion.
The Employer’s Right to Object
The employer’s interests are also taken into account based on
(1) the number of requests received
Any employer with more than 45 but less than 201 employees has the right to object to a request for “Bridge Part-Time Work” in case a certain number of its employees (about 1 out of 15) already reduced their working hours (or requested such reduction). Such objection right is supposed to protect small-sized and medium-sized employers from administrative overburden incurred by a high number of requests for “Bridge Part-Time Work”. For the avoidance of doubt, (other) employees working in part-time based on (i) contractual agreement, or (ii) any other statutory entitlement (outside of “Bridge Part-Time Work”) may not be considered in this regard.
(2) (other) operational reasons
Furthermore, the employer has the right to object to any request for “Bridge Part-Time Work”, regardless of its scope and the number of employees already working in “Bridge Part-Time Work”, if and to the extent there are conflicting “operational reasons”. In particular, such “operational reasons” are deemed to exist in case the requested “Bridge Part-Time Work” would significantly affect the organization, the workflow or the safety in the employer’s business establishment or cause disproportionate costs.
However, it is expected that German labor courts will set high bars to justify an objection based on “operational reasons”. The mere fact that the employer has to hire a new employee on a temporary (part-time) basis to compensate the reduced workforce due to the “Bridge Part-Time Work” does not constitute “operational reasons”. The German Federal Labor Court (Bundesarbeitsgericht) decided regarding requests for regular part-time work that a training period of three months for the substitution is not disproportionately expensive and cannot be viewed as operational disruption.
Scope of the Objection Right
The employer’s objection right does not only relate to the reduction of working time and the duration of the “Bridge Part-Time Period”, but also to the requested (re-)distribution of working time. Thus, it is possible that the employer does generally agree to a reduction of the working time, but objects to the requested and contemplated (re-)distribution of the working time.
If there are several competing requests, from which the employer only has to accept one and may object to the others, the employer must make this decision at its reasonable discretion. In this respect, the employer must also take into account the individual employees’ motivations, in case they have indicated such information in their requests.
The Objection Period
An employer must object (in written form) to the employee’s request for “Bridge Part-Time Work” at least one month prior to the contemplated beginning of the “Bridge Part-Time Period”. In case the employer fails to do so, its consent is deemed to be granted by operation of law. Such legal effect extends to all items of the employee’s request with respect to “Bridge Part-Time Work” (including the reduction of working time, the supposed (re-)distribution of the remaining working time and the “Bridge Part-Time Period”).
The Blocking Periods
Should the employer agree to the request, the employee is not entitled to request any further changes to his or her working hours during the “Bridge Part-Time Period” (including an extension of such period).
Upon return to his or her full-time position, the employee may only submit a new request for “Bridge Part-Time Work” following the lapse of a one-year period.
In case the employer objects to the “Bridge Part-Time Work” due to
- the number of requests received, the employee may submit another request only following a blocking period of one year, or
- operational reasons, the blocking period is two years.
In case the employer objects to the request, the employee may litigate against the employer’s objection. However, the employer’s consent to the request is only replaced by a court ruling once it becomes legally binding and non-appealable (which can take several years). Self-enforcement of “Bridge Part-Time Work” would be considered a refusal to work, which (in particular in severe cases) may qualify as good cause for an extraordinary termination without notice period.
The German government expects that approx. 155,000 requests for “Bridge Part-Time Work” will be submitted in 2019. Should these expectations materialize, the new “Bridge Part-Time Work” might result in an increasing number of available job offers (in particular, for fixed-term employment).
Due to the objection period and the legal consequences in the event of non-compliance, German employers should implement an internal system (providing for clear internal responsibilities and standardized procedures) for the administration of requests for “Bridge Part-Time Work”.
With respect to M&A transactions, the new provisions on “Bridge Part-Time Work” might provide a (flexible) legal instrument to reduce the working-time of certain employees on an individual basis (beyond the option of collectively agreed reduced working time (Kurzarbeit)) in order to avoid headcount reductions. Of course, “Bridge Part-Time Work” can only be implemented with the agreement of the respective employees. However, since “Bridge Part-Time Work” is now embedded in German statutory employment law, the employees might have less concerns with respect to those changes of the employment relationship offered by the employer and view their rights to return to a full-time position sufficiently protected. Thus, “Bridge Part-Time Work” might be a viable instrument to balance the future needs of employers and employees.
In any event, there seem to be multiple opportunities to implement the new “Bridge Part-Time Work” in employment relationships to the benefit of both employers and employees.