FOPH of March 19, 2019 - 9 AZR 362/18
The statutory leave entitlement according to Sec. 1, 3 Federal Leave Act (BUrlG) also exists for the period of parental leave, but may be reduced by the employer pursuant to Sec. 17 (1) (1) Federal Parental Allowance and Parental Leave Act (BEEG). This requires a legal declaration completed upon receipt aimed at reduction. Sec. 17 (1) BEEG is in line with EU law.
The plaintiff was employed by the defendant since mid-2001 as an assistant to the management. She was on parental leave from the beginning of January 2013 until mid-December 2015. At the end of March 2016, the plaintiff terminated the employment relationship with the defendant to the end of June 2016 and requested leave of absence for the period of notice taking into account the leave entitlements accrued during the parental leave. In a letter of early April, the defendant granted the plaintiff a certain number of leave days, but refused to grant leave for the period while she was on parental leave. The plaintiff lastly asserted in their claim the compensation for 89.5 working days of leave from the period of parental leave.
The lower courts dismissed the claim.
The appeal before the FOPH was equally unsuccessful. The FOPH is of the opinion that with the letter dated early April 2016 in accordance with Sec.17 (1) (1) BEEG, the defendant had reduced the leave entitlements from the years 2013 to 2015 by one twelfth for every full calendar month of parental leave. If a company wishes to make use of this granted power to reduce an employee's holiday leave by one-twelfth for every full calendar month of parental leave, it must submit a legal declaration which is completed upon receipt aimed at this purpose. It is sufficient for the employee to be aware of the fact that the company intends to make use of the reduction option. The company's right to reduction also covers contractual extra leave if the parties to the contract have not agreed on any provisions deviating from Sec.17 (1) (1) BEEG.
The reduction in the statutory minimum leave entitlement does not infringe Article 7 (1) of Directive 2003/88/EC (the Working Time Directive) nor Sec. 5 (2) of the Framework Agreement on parental leave in the Annex to Directive 2010/18/EU. According to the case-law of the Court of Justice of the European Union, EU law does not require that employees who were not obliged to work during the reference period for parental leave be regarded as equivalent to employees who actually worked during that period.
Thus, the company can reduce an employee's leave by one-twelfth for every full month of parental leave. It does not have to make use of this right. However, if the company wishes to do so, a legal declaration which is completed upon receipt is required, which may be express or tacit. Even if the reduction of the leave entitlement is still possible after the end of the parental leave, for reasons of evidence a reduction in text form during the parental leave is recommended.