Part-time work application rejected – what can employees do?

More and more employees in Germany are feeling the desire to work part-time. The reasons for this are manifold. And fundamentally, you also have a Right to work part-timeHowever, conflicts often arise after employees have applied for part-time work. The application for part-time work is sometimes rejected by the employer. rejected – for operational reasons – which regularly puts employees in a difficult position.

In this guide we would like to Your legal options if the employer has rejected your request for part-time work. We will provide you with information, among other things,

• under which legal conditions part-time work is possible,
• whether you have the right to part-time work,
• to what extent the employer can reject the application for part-time work,
• What legal options you have if your employer has wrongfully rejected your part-time work application.

After you have our well-founded guide After reading this, you'll know what to do if your employer has rejected your part-time work request. If you still have any questions, please feel free to contact us. The same applies if you require legal assistance.

Important NOTE: It is not uncommon for discussions about termination to arise when part-time or parental leave requests occur. Sometimes employers discuss Termination or offer a Termination agreement with severance pay In such cases, you should contact us directly so we can discuss the matter in detail.

What is part-time work?

The Part-Time and Fixed-Term Employment Act defines Section 2 paragraph 1 sentence 1 a part-time workers as someone

“whose regular weekly working hours are shorter than those of a comparable full-time employee”.

An employee is also considered to be employed part-time if it is a Marginal employment (“mini-job”).

This shows that there are many opportunities for part-time work. A full-time employee can arrange his or her working hours to Example from 40 hours to 38 hours. However, he can also reduce his working hours to such an extent that his employment relationship is then only marginal in nature.

It is also possible that you can reduce your working hours from a 5-day week to a 4-day week This is also part-time work.

The reduction in working hours is permanentlyThis means that a return to the old working hours is generally no longer possible. An exception applies only to the so-called Bridge part-time after Section 9a TzBfG. Under the conditions laid down there, a temporary reduction in working hours is possible.

Requirements for part-time work

The good news is: Employees generally have a Right to work part-timeHowever, some basic requirements must be met. You can use the following list as Checklist use to determine whether you meet the requirements for part-time work:

• You need to Employees It doesn't matter what type of employment relationship is involved. This means that, for example, temporary employees, marginal employees, senior managers, or employees with collective bargaining agreements (AT) are generally entitled to part-time work. Freelancers or employees in similar positions have no right to part-time work. The same applies to trainees.
• The employment relationship must longer than 6 months have passed.
• The employer (company) usually has to more than 15 employees be employed – excluding trainees. What matters is not 15 full-time positions, but only whether the employer employs more than 15 people.
• Possibly: The last reduction in your working hours or justified rejection by the employer was more than 2 years ago.
• You have your part-time desire properly (in due form and within the deadline).
• The employer has your Application for part-time work not rejected or rejected not in due form/time.

As you can probably imagine, the last two points are the legal issues in practice. Employees don't always have a proper request for part-time work. However, the most common point of contention is the employer's right to reject a part-time request. Therefore, we will address these two points separately below.

Proper part-time request – avoid mistakes

If you would like to work part-time in the future, you should do your homework. You must Apply for part-time work properlyOtherwise, you risk your employer rejecting your part-time work request. By following just a few simple steps, you can ensure that your part-time work request is legally sound. Here are the key points:

Part-time request at least 3 months in advance

You must claim your part-time work at least three months before the desired start of part-time work claim from the employer. Important NOTE: This isn't possible during the first six months. This means you can only apply for part-time work after you've been working for six months.

If the part-time request is too short, it is only partially harmful. In this case, the part-time request takes effect at the earliest possible time (in three months).

Desired reduction and distribution of working hours

The law requires you to include in your application for part-time work the desired reduction in working hours This means that applications such as “I want to reduce my working hours” are not sufficient. You must specify the working hours you wish to reduce (for example, from 40 hours to 30 hours per week). Otherwise, your request for part-time work may be rejected.

In addition, you should also desired distribution of working hours However, this is not mandatory. You can also leave the distribution of working hours across the weekdays to the employer's discretion.

Assertion in text form

The formal requirements are not particularly stringent. Nevertheless, there are a minimum set of formal requirements in the law. Section 8 paragraph 2 sentence 1 TzBfG you have to express your desire in Text form What is text form? The text form requires

• a readable explanation,
• in which the person making the declaration is named and
• which is submitted on a durable medium.

In other words: One email is sufficient if you end the email with your name. To avoid any mistakes in the format, we recommend (1) to print the application (2) to sign (3) to scan (4) to be sent to the employer in advance by email and (5) to be sent by registered mail in the original by post.

If you do this, you also ensure that the application actually reaches the employer and that you can prove that it was received.

Employer rejects part-time work – operational reasons

Once the employer receives your application, they must address it. They must discuss your request for part-time work with you with the aim of reaching an agreement. Employer The following options are generally available:

(1) Approval of the reduction of working hours and the (re-)distribution of working hours

(2) Approval of the reduction of working hours, rejection of the distribution of working hours

(3) Rejection of the application for part-time work in its entirety

Part-time application must be rejected in due form and within the deadline

If the employer wants to reject your request for part-time work (or even just the distribution of working hours), they do not have unlimited time to do so. one month before the start of the desired reduction or distribution of working hours the employer must have rejected the request for part-time work in writing.

And what if the employer fails to meet this deadline? This has severe legal consequences. The law states in this case:

The reduction and distribution of working hours requested by the employee is deemed to be fixed.

Required: Conflicting operational reasons

If the employer has rejected your part-time application in due form and within the deadline, this does not mean that the matter is settled. In fact, the employer cannot simply reject your part-time application. The employer has this legal authority according to Section 8 (4) TzBfG only if operational reasons oppose this.

Operational reasons are given if the reduction affects the organization, work processes or safety in the company significantly impair The same applies if this would result in disproportionate costs.

Employers often justify the rejection of part-time work applications by arguing that a reduction in working hours would significantly impair the organization. However, the employer's reasoning is not always convincing. Case law examines the three stepswhether there are objective reasons that prevent the request for part-time work.

Examination of conflicting operational reasons

(1) Is there a company organizational concept? If so, what is its structure?

(2) Does the organizational concept actually conflict with the employee's request for part-time work? Can the organizational concept be harmonized with the employee's request for part-time work with reasonable changes?

(3) Is the weight of the conflicting operational reasons so great that part-time work significantly impairs the company’s business objectives?

Federal Labor Court, judgment of November 13, 2012 – 9 AZR 259/11

The operational reasons claimed by the employer must be considerable weight be.

Federal Labor Court, judgment of 18 February 2003 – 9 AZR 164/02

Employers are obliged to Opportunities for operational reorganization and, if necessary, to eliminate or minimize any possible disruptions in the workflow or in the company organization.

Employees benefit from the fact that employers are able to provide operational reasons for rejection burden of presentation and proof are.

Examples of conflicting operational reasons

• Not possible Divisibility of a full-time job (Exception: Workplace was already “shared” before)
• Pedagogical organizational concept with a teacher/group leader with continuous care of the children by a caregiver
• Service conceptsthat require full-time staffing (customers should always have the same contact person)
• Suitable part-time worker is on the labor market not available / ordering overtime not possible (however, the employer must inquire with the employment agency and advertise internally/externally)
• Use of a substitute leads to disproportionate additional costs (not sufficient: recruiting costs, training costs, higher administrative costs)
• Client requires the use of temporary workers with a certain number of weekly hours
• Conflicting part-time requests other employees
• Refusal of consent by the works council to hire a replacement

Part-time work rejected for operational reasons – Legal options

If your employer has rejected your part-time application, this is obviously a problem for you. However, this does not necessarily mean that the employer has rejected your part-time application for good reason. The question of whether operational reasons preclude your part-time application is subject to judicial review.

The problem: If you do not take action, everything will remain the same. Even though the employer had no reason to reject your request for part-time work, your only option is to challenge the employer's decision. judicial review If the employer’s opposing operational reasons are merely pretextual or legally unsound, the Labour Court would order the employer to Consent to change working hours to explain.

Once the judgment has become final, § 894 Code of Civil Procedure the declaration of consent is deemed to have been submitted. But that is the catch in the whole story: We need the Legal forceAnd it may take two instances for this to happen. That's equivalent to more than a year in labor court proceedings.

One idea would be to Application for an interim injunction However, the chances of success would be doubtful. A favorable decision by the labor court would preempt the main proceedings. From the perspective of employees, however, there is no alternative to bringing a dispute regarding a rejection of part-time employment promptly before the labor court.