Out of the part-time trap - some first tips for dealing with the new bridging part-time
In the 2018 Coalition Agreement, the new Government agreed to significant changes to both part-time and full-time employment laws. The entry into force on 1 January 2019 of the Act on the Further Development of the Part-time Law – Introduction of Bridging Part-time (Gesetz zur Weiterentwicklung des Teilzeitrechts – Einführung einer Brückenteilzeit) saw the implementation of various amendments to the part-time law. Employers have already been confronted with the first applications for temporary part-time work. As with every new employment law, HR personnel and labour lawyers will likely have to address this issue more intensely.
The following article looks more closely at the basic elements that were described in our BEITEN BURKHARDT Labour Law Newsletter of June 2018.
1. Another entitlement to work part-time bridging part-time work
Bridging part-time work is nothing more than a right of employees to work part-time, combined with the right to return to full-time work or to working a greater number of hours after a fixed period of time working part-time. This new entitlement to work part-time is regulated by § 9a of the Part-time and Full-time Employment Act (Teilzeit- und Befristungsgesetz, TzBfG).
The aim of this provision is to enable employees to adapt their working time over a longer, but still fixed time period so as to best suit the stage of their life. The reasons for such a request are varied and might include raising or caring for family members, health or personal reasons, pursuing a hobby or honorary or voluntary work, but the law does not require employees to provide or prove a reason.
For the first time, the new law gives employees the right to reduce their working time for a specific time period, as determined in advance, and then to return to working at their earlier level of working time. In contrast to the existing possibility to permanently reduce the working time (§8 TzBfG), the reduction of working time in the case of bridging part-time work is only temporary.
One goal of the new law is to allow employees to voluntarily work part-time, but not be locked involuntarily in the “part-time trap”. Previously, the right to work part-time for a longer, indefinite period did not entail an unconditional right to increase the working time or return to the previous level of working time.
Instead, when an employee made an application to extend their working time (under §9 TzBfG), the employer was only obliged to give preference to the employee’s wish when a suitable position with the same qualifications became available within the company.
2. Eligibility criteria
Claims for bridging part-time can only be made when more than 45 employees work for the employer. There is no obligation on smaller companies to grant bridging part-time in order to avoid placing excessive demands on such companies.
- Practical tip
When determining whether the minimum number of employees has been exceeded, the decisive factor is not the size of the plant, but the size of the company. Plants with 45 or fewer employees can therefore be confronted with the requests for bridging part-time when they are part of a company that exceeds this employee threshold.
Whether the company employs more than 45 people should be determined on the basis of the general employment situation. Temporary increases or decreases are irrelevant.
ELIGIBLE GROUP OF PERSONS / WAITING TIME
All employees of the company are eligible to apply for bridging part-time; trainees are not eligible. It is irrelevant whether the employee is currently employed full-time or is already working part-time. The only requirement is that the employment relationship has existed for more than six months.
- Practical tip
An application for bridging part-time can only be made once this waiting period has expired. In light of the three-month notice period, an employee must have worked for the employer for at least 9 months before he or she can start bridging part-time. If the employment relationship started on 1 January 2019, for example, bridging part-time can only commence on 1 October 2019 at the earliest.
APPLICATION, FORM AND TIME LIMIT
An application for bridging part-time must be made at least three months before the employee wishes to start their bridging part-time. The application should also set out how the employee wishes to distribute this working time. The formal hurdles are small, as written form – so email or fax – is sufficient. There are also no legal limitations on the volume of any bridging part-time, in particular there is no minimum level, so that an application may be made for only a minor reduction in the amount of of working time. In each case, the limit is the abuse of rights. The law provides that bridging part-time must be taken for at least one year, but for no more than five years.
3. Rejection of an application by the employer
FORM AND TIME LIMITS FOR THE REJECTION
If an employer intends to reject an application for bridging part-time, he must announce this intention in writing at least one month before the desired start of the bridging part-time. If the employer misses this deadline, the employee’s working time will be reduced to the desired level for the requested duration. This consequence already applies to applications for permanent part-time employment.
- Practical Tip
In contrast to employees, employers must comply with the strict written form requirement when issuing a rejection decision. This means that the employee must receive notice of the refusal in a signed letter, in original, and delivery must be verifiable. In this respect, we recommend that the rejection decision be hand delivered, and that the employee be asked to sign to confirm receipt.
Employees should clarify in their application whether the application relates to the period of time, the scope, the reduction in working time or how the new working time will be distributed, or to all of these criteria. In contrast, employers must clarify whether the rejection relates to the period in which the employee wishes to take bridging part-time, the amount of the reduction or the distribution of the reduced working time, or a combination thereof only to specific aspects.
OPERATIONAL GROUNDS AS THE REASON FOR REJECTION
Both employers with 45 to 200 employees and those with more than 200 employees may refuse a request for bridging part-time work on operational grounds. This ground for rejection may already be used for applications for permanent part-time work (§8(4) TzBfG). Operational grounds will exist, in particular when the reduction in working time would substantially impair the organisation, working processes or security within the plant or would give rise to disproportionate costs. To this extent, the principles established in the case law with respect to the rejection of applications for permanent part-time work on operational grounds can be applied to the rejection of requests for bridging part-time on operational grounds. In the case of dispute, the employer must show and, if necessary, prove to the court that the grounds for the rejection are sufficiently serious. One reason for the rejection of an application for bridging part-time could arise from the fact that the reduction in working time is only on a temporary basis. In particular, where the employee has applied for bridging part-time of a relatively short duration, a lack of specialists could make it impossible to find sufficiently qualified applicants who are willing to fill the position for such a short time period and it would also be too expensive to employ and train a new employee to fill the position.
GROUNDS FOR REJECTION FOR COMPANIES
UP TO 200 EMPLOYEES - UNREASONABLENESS
There is an additional ground for rejection for companies of this size. The law introduces a reasonableness threshold (§9a (2) second sentence of the TzBfG). In line with this provision, an application may also be refused when, at the point of time at which the requested bridging part-time would commence, the number of people who are already in bridging part-time exceeds the upper limit established in the law for the total number of employees within the company (e.g. when the company has between 45 and 60 employees and at the point of time at which the reduced working time is meant to begin, at least four other employees have already reduced their working time, or where there are more than 60 but fewer than 75 employees in the company and at least five employees have already reduced their working time; see table below). The aim of this rule is to protect such companies from the impact of too many employees taking bridging part-time simultaneously.
An employer that generally has more than 45 but fewer than 200 employees may also refuse an employee’s request when, at the point of time that the desired reduction in working time is supposed to begin,
with employees totalling, as a rule
- more than 45 and fewer than 60 - at least four
- more than 60 and fewer than 75 - at least five
- more than 75 and fewer than 90 - at least six
- more than 90 and fewer than 105 - at least seven
- more than 105 and fewer than 120 - at least eight
- more than 120 and fewer than 135 - at least nine
- more than 135 and fewer than 150 - at least ten
- more than 150 and fewer than 166 - at least 11
- more than 165 and fewer than 180 - at least 12
- more than 180 and fewer than 195 - at least 13
- more than 195 and fewer than 200 - at least 14
other employees have already reduced their working time.
Employees, who are working part-time on the basis of other legal provisions, e.g. as a permanent part-time employee (§8 TzBfG) or in accordance with the parenting or carer’s leave legislation, do not count when assessing how many employees have already taken bridging part-time.
- Practical Tip
Companies with up to 200 employees should carefully document the legal basis for the part-time work for each applicable employee, as well as the time periods that apply in each case.
Irrespective of the legal rules, employers (even those with fewer than 45 employees) are free to voluntarily agree that an employee may work part-time on a temporary or permanent basis. If employers choose to approve requests for temporary part-time work, without having a legal obligation to do so, may give rise to a legitimate expectation under the circumstances. When a company has fulfilled its quotas and has still approved applications from additional employees to work bridging part-time, the next applicant could potentially claim company practice.
Any such voluntary agreements entered into after the law entered into force should be counted when calculating the threshold for the “unreasonableness” ground of rejection.
- Practical Tip
Different treatment will be valid if an objective ground can be named as to why an agreement on bridging part-time has been voluntarily concluded with one employee, but not with another. Such a reason could, for example, be that the qualifications of one employee – also in light of the local job market – mean that it is operationally imperative that the employee is retained for the duration of the requested bridging part-time, in order to otherwise risk losing this employee altogether.
MULTIPLE APPLICATIONS - SELECTION
There could be some difficulty in selecting candidates, where numerous employees apply to begin bridging part-time on the same day and granting all of these applications would mean that the limits of reasonableness are exceeded.
The employer must exercise reasonable discretion when making any decisions on bridging part-time. All relevant circumstances must be duly taken into account and the personal, social and family considerations weighed up. This can lead to discussions, as it might be difficult for an applicant to understand or review the employer’s assessment.
BAN ON REDUCING OR EXTENDING WORKING TIME
Finally, while the employee is on bridging part-time, the employer may refuse any other application made by the employee to reduce or extend their working time. This ban on reducing or extending the working time is intended to give employers the security they need for their long-term planning. In any case, this ban only applies to claims under this law. Applications to work part-time made in accordance with another legal basis, such as the Federal Parental Allowance and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz), the Caregiver Leave Act (Gesetz über die Pflegezeit) and the Family Caregiver Leave Act (Gesetz über die Familienpflegezeit), remain unaffected.
4. New applications for bridging part-time
An employee may make a new application to reduce his or her working time under the bridging part-time law at the earliest one year after he or she returns to working at the original level of working time. If the employer rejects the application based conflicting operational grounds, the employee can only submit another application once at least two years have passed. If, however, the employer rejected the application on the basis of unreasonableness, the employee may make a new application for the reduction of their working time under this new law after at least one year has expired.
5. Return to the previous Position after bridging part-time
At the end of the temporary part-time period, the employee may return to his or her previous level of working time. However, there is no right to return to the same position. Instead, in line with the employer’s right to give instructions, the employer may assign a different but equivalent position to the employee.
6. Replacement employees
Generally, when an employee reduces his or her working time under the bridging part-time law, the employer will be forced to compensate for the lost hours another way. Legally, it would be possible to employ someone else under a temporary contract to cover the lost hours (§ 14 (1) TzBfG). This only applies, however, when the temporary contract concerns the position for which the working time has been reduced as a result of bridging part-time. If, instead, the employer decides to reorganise at various levels, the reason for the temporary nature of the contract will be lost. As long as the legislators have not yet implemented the planned amendments to the law on fixed term contracts without objective grounds (§14 (2) TzBfG) (see on this issue the June 2018 edition of our BEITEN BURKHARDT Labour Law Newsletter, page 2), this solution is also available. Agency workers may also be used, however the applicable maximum leasing period of 18 months applies unless otherwise regulated under a collective bargaining agreement.
Overcoming the “part-time trap” is a positive aim of bridging part-time. Unfortunately, the new provisions contain some uncertainties for users, which could have been avoided. It is becoming more and more difficult in practice to maintain an overview of the various types of part-time work, as the relevant provisions are spread across a number of diverse laws. As in the case of permanent part-time work, if there is a dispute, there are likely to be question as to whether the grounds for the refusal are legally acceptable and whether the form requirements and deadlines for the application and the refusal were met.
Dr Michaela Felisiak
Lawyer, Licensed Specialist for Labour Law