01. Aug 16

BAG: Termination effective despite claim for parental leave

If an employee fails to observe the required written form when claiming parental leave, the employer is entitled to dismiss the employee. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court (Az.: 9 AZR 145/15).

GRP Rainer Rechtsanwälte Steuerberater, Köln, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, München und Stuttgart führen aus: Employment law stipulates that employees are entitled to claim parental leave. Claiming parental leave is subject to the strict requirement that the proper written form be observed. Failure to comply with this requirement means that the employer can then terminate the employment contract despite being aware of the claim. This comes from a judgment of the Bundesarbeitsgericht from May 10, 2016.

Employees wishing to make use of parental leave have to submit a written request to their employer and in doing so state the timeframe in which they desire to take parental leave. The BAG clarified that a request for parental leave is subject to the strict requirement that the proper written form be observed and must include a handwritten signature from the employee.

In the present case, an office worker had sent a telefax dated June 10, 2013 to her employer to inform the latter the she was claiming two years parental leave. On November 15, 2013, she received notice that she had been dismissed. She subsequently brought an action again this decision invoking the provisions on protection against wrongful dismissal in the Bundeselterngeld- und Elternzeitgesetz (BEEG) [legislation dealing with parental allowance and parental leave]. While the action for wrongful dismissal was successful before the courts of lower instance, the BAG reached a different conclusion.

The 9th Senate of the Bundesarbeitsgericht held that the notice of termination from November 15, 2013 had effectively brought the employment relationship to an end, as the plaintiff had not been entitled to any kind of special protection against dismissal. Moreover, her attempt to claim parental leave by means of a telefax had not been effective due to the fact that this did not satisfy the strict requirements pertaining to proper written form. According to the Senate, there were no specific features of this case that would have prevented the employer from taking appropriate action in good faith in response to this failure to observe formalities.

Effectively terminating an employment contract can often prove to be a difficult undertaking for employers, especially in the case of extraordinary and immediate dismissal. When it comes to issues relating to termination as well as other matters within the field of employment law, employers can turn to lawyers who are competent in this field of law.

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