Parental leave (Elternzeit)- How to calculate the 8 week pre-protection period


At the backdrop of a fresh ruling on this topic by the BAG (Federal Court of Employment) it is worth reiterating the requirements for an employee to enjoy employment protection after he or she applied for “Elternzeit”.

Up to age three of the new family member, newly blessed parents have the opportunity to apply for parental leave. This results in “putting to sleep” the employment contract, that is to say, the rights and obligations of the employer (paying salary) and the employee (going to work) are put on hold whilst keeping the contract in tact. As a corollary, the employee enjoys special dismissal protection according to Section 18 BEEG. Also, as was the case in the ruling by the BAG, the parent can ask the employer for a reduction in working hours below a maximum of 30 hours per week (so called parental part time).

Back to the basic question: What formalities do I have to observe as a parent to correctly apply for parental leave granting me dismissal protection on the day of application?

First, the employee, fulfilling the personal eligibility criteria in the first place, has to ask for parental leave in written form.

Second, the request has to be done at least 7 weeks prior its beginning.

Third, the request has to specify the period for which parental leave is sought.

Fourth, the request should be done unconditionally. Here, in the case under review, the employee made a mistake. Respecting points one to three, the employee, later plaintiff, applied for parental leave on the condition that he be granted parental part time. The employer rejected to grant him parental part time (reduction in working hours) leaving the employee without dismissal protection.

Fifth, in order to enjoy dismissal protection on the day of filing for it and getting it registered by the employer, the valid request that heeds the above mentioned criteria, is not to be done more than 8 weeks before the beginning of parental leave. If it is done more than 8 weeks before, then dismissal protection will only come into place 8 weeks before the beginning of parental leave. That is to say, in this premature application scenario, the request as such is not effecting dismissal protection. Rather it automatically starts 8 weeks before the beginning of parental leave. This opens a period of “vulnerability” between filing for it and the start of the eight weeks.

But what does it mean 8 weeks before the “beginning of parental leave”?

In the ruling under review, the BAG dealt with the question of what is the reference point to calculate the 8 weeks before the “beginning of parental leave”. Is it the actual date of delivery or the one attested in advance by the doctor? This is a critical question because both dates could differ significantly.

The BAG ruled, that the date assigned by the doctor is to be seen as the benchmark as the earliest possible beginning of the period of parental leave. This makes sense because otherwise the employee eager to respect the deadlines given by the law in order to enjoy dismissal protection with filing his or her request for parental leave would be dealt a harsh blow if the delivery date turned out to be later than expected. He would be left vulnerable exposed to the vagaries of nature with regard to the 8 week pre-protection period.


BAG, 12.05.2011, 2 AZR 384/10

http://juris.bundesa...Art=en&nr=15504

Section 18 BEEG

http://www.gesetze-i.../beeg/__18.html


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