Parental leave

from Wikipedia, the free encyclopedia

In Germany, parental leave is a period of unpaid leave from work after the birth of a child. Employees have a legal right to this exemption . This right is stipulated in the Federal Parental Allowance and Parental Leave Act together with other provisions on the compatibility of family and work .

Conceptual

Europe is part of parental leave , part of parental leave spoken. Until December 31, 2000, parental leave was mentioned in German legislation .

In Austria the term “parental leave” is used.

Terms with vacation are sometimes seen as misleading because, according to critics, childcare work is all too easily misunderstood as vacation in the sense of a recreational vacation and is thus underestimated.

On the other hand, it is emphasized that the term vacation is "more concise, because it refers to the temporary leave of absence and thus to a secure employment relationship". A leave of absence presupposes an existing employment relationship, which is canceled with a "commitment to reinstatement".

Legal Regulations

Basis for Claims

The right to parental leave is regulated in Section 15 of the Federal Parental Allowance and Parental Leave Act (BEEG). It exists regardless of the domicile or habitual residence of the claimant, provided that his employment relationship was concluded in accordance with German labor law. If the existing employment relationship is not subject to German labor law, the right to parental leave arises on the basis of Art. 9 Regulation No. 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations ( Rome I ).

Civil servants as well as professional and temporary soldiers are also entitled to parental leave. Special ordinances apply to them, but some of them declare the provisions of the BEEG to be applicable accordingly.

Eligibility requirements

Employees can claim parental leave in accordance with § 15 BEEG for the care and upbringing of a child with whom they live in a household. The prerequisite is an existing employment relationship that lasts at the beginning of parental leave. The type and duration of the employment relationship does not matter, so that, for example, employees in a fixed-term employment relationship, part-time employees, students in a secondary job, trainees, home workers and marginally employed persons can take parental leave.

The employee must take care of the child's upbringing and care and cannot leave it to someone else. However, the employee may seek support from third parties (for example family members or au pairs ) in bringing up and caring for children .

The child to be cared for does not have to be the biological child of the employee. Parental leave can also be used for adopted children , children of the spouse or partner and for children who are taken into the household in full-time care . Employed grandparents can claim grandparent leave for their grandchild if the child's parent is a minor or is in the last or penultimate year of an education that was started before the age of 18. The grandparents are only entitled, however, if none of the child's parents take parental leave themselves.

Both parents can take parental leave completely or temporarily together.

In principle, parental leave can be taken independently of the receipt of parental allowance .

Duration of entitlement

Every parent is entitled to parental leave until the child reaches the age of three. The duration of parental leave per child can therefore be up to 36 months per parent ( Section 15 BEEG Paragraphs 2 and 3). The postnatal maternity protection period is offset against the parental leave , so the maternity protection does not lead to an extension of the parental leave beyond the three-year total period. For children born up to June 30, 2015, a portion of up to twelve months of parental leave can be carried over to the period between the child's third and eighth birthday if the employer agrees. For births after July 1, 2015, up to 24 months of parental leave can be carried over to the time between the child's third and eighth birthday without the consent of the employer. The employer can only refuse to transfer parental leave to this period for urgent operational reasons.

With regard to the latest changes, a coalition agreement from November 2013 initially provided that up to 24 months of parental leave should be transferable up to the child's fourteenth (instead of the eighth) birthday without the consent of the employer. At the same time, it was agreed to anchor a legal right to limited part-time work in the Part-Time and Temporary Employment Act. These regulations should prevent old-age poverty; Business representatives had criticized that they would be forced to create unnecessary jobs.

Part-time work during parental leave does not extend the right to parental leave: in this case too, it is limited to a maximum of 36 months per parent and child. (It is different with the entitlement to parental allowance, which extends to double the time if half of the entitlement is used.)

Request for parental leave

Anyone wishing to take parental leave must request it from the employer in writing at least seven weeks in advance and at the same time make a binding declaration of the periods for which parental leave is to be taken within two years. If parental leave is taken immediately after the maternity protection period, the request for parental leave must be submitted no later than seven weeks before the maternity protection period expires, i.e. in the first week after the due date ( Section 16 BEEG). For births from July 1, 2015, the registration period is 13 weeks if parental leave is taken between the child's third and eighth birthday. The application requires the written form according to § 126 BGB, an application by e-mail or fax is not sufficient.

According to the ruling of the Federal Labor Court , employees after the birth of another child during ongoing parental leave are entitled to end their first parental leave early and to add the unused parental leave to the end of the second parental leave, provided there are no important operational reasons to the contrary.

Part-time employment

During parental leave, the person who takes parental leave is not obliged to do anything. If desired, you can continue to work part-time for up to 30 hours per week . According to Section 15 (7) of the BEEG, companies with more than 15 employees are entitled to part-time employment between 15 and 30 hours per week for at least two months or more if there are no urgent operational reasons and the employment lasted for at least six months without interruption. In companies with up to 15 employees, parents have to agree with the employer about part-time work. If no agreement can be reached on a reduction in working hours (Section 15 (4) and (5) BEEG), the person can, under certain conditions, request a reduction in his or her working time twice during the entire period of parental leave (Section 15 (6) BEEG) , whereby mutually agreed parental part-time arrangements do not count towards this number. In the case of part-time employment during parental leave , obligations to on- call duty are not to be excluded from the calculation of the 30 hours, because these are also considered working time under Community law.

Further training during parental leave

The employer cannot request participation in an in-company training program during parental leave. If the person who takes parental leave wants to receive further training during parental leave , there are no labor regulations in the way. The employer does not have to support the further training interest financially. If the employer carries out in-company vocational training measures himself or if he bears the costs for extra-company vocational training measures in whole or in part, people who are on parental leave can also participate. The employer chooses the participants. The works council can make suggestions for the participation of employees or groups of employees in the company ( Section 98 BetrVG ). In this case, the employer and the works council must reach an agreement on which employees should take part in the training measure. The absence of agreement, which decides arbitration .

Relaxing vacation

According to Section 17 (1) BEEG, the vacation leave to which the person taking parental leave is entitled for the calendar year can be reduced by one twelfth for each full calendar month of parental leave, provided the person does not work part-time during parental leave. The reduction does not take place by law, but must be declared to the employee by means of a declaration of intent that must be received while the employment relationship is still in effect. The declaration of intent is not bound to a specific form and the declaration can also be made after the end of parental leave.

According to Section 17 (2) BEEG, the employer is obliged to grant an employee the remaining leave he or she is entitled to, which he or she has not or not fully received before the start of parental leave, after parental leave in the current or the next year of vacation . According to the judgment of the Ninth Senate of the Federal Labor Court, Section 17 (2) BEEG is to be interpreted in such a way that the right to vacation leave that arises before the first parental leave is transferred to the period after another parental leave that immediately follows the earlier parental leave.

Protection against dismissal during parental leave

From the point in time from which parental leave is requested, but no earlier than eight weeks before the start of parental leave (or for parental leave between the child's third birthday and the child's eighth year of life, no earlier than 14 weeks before the start of parental leave) and during parental leave according to § 18 BEEG, a general ban on dismissal for the employer. The ban on dismissal also applies in the event of the employer's bankruptcy or after a transfer of business during parental leave. In special cases, a dismissal may exceptionally be declared permissible by the body responsible for occupational safety, for example in the event of the closure of the company or individual parts of the company, in the event of serious criminal offenses by the employee or serious breaches of contractual obligations as well as in the event that the economic existence of the company is endangered by the continuation of the employment relationship .

A declaration of admissibility issued to the employer can be contested by the employee within one month. Filing an appeal means that the decision will not take effect until the appeal has been finally decided. In order to protect their own rights, the employee can also bring an action for protection against dismissal at the labor court within three weeks if the dismissal is pronounced ; if he does not do this, the termination becomes effective ( § 4 , § 7 KSchG ).

End of parental leave

At the end of parental leave, the employment relationship is automatically revived under the conditions that applied before parental leave. This does not require any requests, special declarations or advance notice from the employer or the employee. If the working hours were reduced during parental leave, the original working hours apply again at the end of the parental leave. A refusal on the part of the employer is not possible in certain cases, such as in the case of serious illness or death of the partner. If the child dies during parental leave, this ends three weeks after death. If necessary, the employee is entitled to part-time employment in accordance with the general provisions of the Part-Time and Temporary Employment Act ( Section 8 TzBfG). If an employee cannot work immediately after the end of parental leave, e. B. in the absence of childcare, he should clarify this beforehand with the health insurance company, as he leaves the social insurance after 30 days of unpaid leave ( § 7 SGB ​​IV ).

Special right of termination

According to § 19 BEEG, employees can give notice of three months prior to the end of parental leave.

No right to previous job

German case law assumes that in the public service any work can be assigned within the pay grade. According to the case law of the Cologne Regional Labor Court , this goes so far that "even a complete withdrawal of supervisory function" is possible "if managerial responsibility is not one of the characteristics of the remuneration group."

The German government contested that Directive 96/34 / EC had direct effect . The EU has asked the German government to comment on this. It is currently not foreseeable whether an infringement procedure with an action before the European Court of Justice will be initiated. However, there are judgments by the ECJ on the obligation to pay damages in the event of non-implementation ( ECJ Francovitch ) and in the event of incorrect implementation of EU directives. The guidelines are directly binding for the public sector.

Directives can only have direct effect in exceptional cases. According to the established case law of the European Court of Justice, a Member State which has not implemented a directive or has not implemented it properly within the prescribed period cannot invoke this default against its citizens. In the interests of the practical enforcement of Community law, in this case the directive has direct effect for the benefit of the citizens if the provision in question contains a regulation that is sufficiently specific and unconditional.

In this case, the direct effect and the associated priority of application of a directive that has not been implemented is limited to the relationship between the citizen and the defaulting state. This is constitutionally unobjectionable. In contrast, the granting of direct (horizontal) effect, also in relation to private law subjects, would shift the jurisdiction of the EC Treaty to the detriment of the Member States, which in this respect have not waived their sovereign rights in favor of the Community institutions.

The following therefore applies to the private sector :

According to the community treaties, directives do not have any direct application in the member states. It is not a question of general and directly effective European legislation. According to Art. 249 (3) EC, directives address the member states and oblige them to implement the provisions regulated in their national law. For this reason, guidelines do not apply directly to relationships between private individuals. The jurisprudence of the European Court of Justice also rejects the assumption of a direct effect of the directives in the relationship between individuals (so-called horizontal effect).

In the opinion of specialist lawyers, this leads to the fact that exercising the right to parental leave often ends the employment relationship as a result of disputes between employer and employee in the labor court through an amicable termination agreement in return for severance pay.

Social security benefits after the end of parental leave

During parental leave, which is completed in the first three years of the child's life, the parent bringing up the child is insured against unemployment if he was already employed subject to compulsory insurance before the child's upbringing. If the bringing up parent becomes unemployed after the end of parental leave and he registers unemployed at the employment agency, he can be entitled to unemployment benefit. However, if at least 150 calendar days of wages were not achieved in the last two years before unemployment, the amount of the unemployment benefit is not based on the amount of income that was drawn before parental leave, but the unemployment benefit is fictitiously calculated according to the professional qualifications.

Overview of legal and financial security

Protection during pregnancy and parental leave in Germany
Simplified representation
Period / point Before the pregnancy Beginning of pregnancy Communication to the employer remaining time of pregnancy 6 weeks before the calculated due date Day of birth 8 weeks after giving birth up to 4 months
after the birth 		up to 12 months
after the birth 		Max. up to the completion of the 3rd year of life (partly up to the completion of the 8th year of life) Getting back to work Raising children After raising children
Pay and other financial benefits: Net salary x € / month
§ 611 BGB 		Maternity allowance : 13 € / day
§§  19-20 MuSchG 		Net salary x € / month
§ 611 BGB
Entitlement to continued payment, Section 18 MuSchG Net salary x € / month minus maternity allowance
§§  19-20 MuSchG 		Parental benefit
minimum € 300, max. 1800 €
§§ 1–6 BEEG
Child benefit 204 € / month, or child allowance, §§ 31–32, 62–78 EStG
Right to unpaid leave : Parental leave , §§ 15–16 BEEG
Right to part-time work : § 8 TzBfG Sections 15–16 BEEG § 8 TzBfG
Special occupational safety : Maternity leave , MuSchArbV
Employment ban : if applicable, prohibition of employment in accordance with §§ 3 to 6 MuSchG Maternity protection , §§ 3 to 6 MuSchG
optional required by law
(12 instead of 8 weeks for premature and multiple births or a medically determined disability)
Protection against dismissal : Section 17 MuSchG (protection against dismissal continues for 4 months after a miscarriage after the 12th week of pregnancy)
Sections 18–19 BEEG

Relation to European law

Equal treatment

With Directive 96/34 / EC , the framework agreement of the European social partners ( UNICE , CEEP and ETUC ) of December 14, 1995 on parental leave became binding. The guideline consists of extensive considerations that apply as "soft law", as well as parts that have become binding, in particular Part II of the framework agreement.

According to the directive, parental leave should apply to both parents; in particular, § 2 No. 2 states that, in the opinion of the signatory parties, the envisaged right to parental leave "should in principle not be transferable". In Germany, mothers and fathers formally have the same entitlement, but in practice, for the most part, only the mothers take parental leave. This raises the question of the extent to which the legislature is obliged to limit the transferability of parental leave or to promote more even use of parental leave through other legislative measures. The latter could be measures that could encourage men to take on family responsibilities, especially through incentives for parental and paternal leave, and to share rights to time off with women. Other measures would be to enable flexible working arrangements for both women and men and to promote the expansion of childcare options.

Constitutional concerns about a division between the two partners can be countered by the fact that there is no constitutional right to a minimum period of parental leave; thus a woman cannot demand the transfer of the two months to herself. In addition, it is constitutionally recognized that promoting equal treatment can also include positive measures such as preferential treatment for women.

Right to an earlier job

Paragraph 2, item 5. Following parental leave, the employee has the right to return to his previous job or, if this is not possible, to be assigned to an equivalent or similar job in accordance with his employment contract or employment relationship.

According to the report for the Council of Europe , only the right to a comparable job is implemented in Germany.

In comparison, the directive in Austria / Vienna has been implemented almost 1: 1 in the Contract Employees Act as the “right to a previous, equivalent or similar post”; whereby the previous post is granted first, then, if this is not possible, an equivalent post, and if this is also not possible, a similar post is granted.

The period of time for which you are entitled to the earlier job is partially limited in different European countries.

European case law

Case 1 (ECJ C-320/01 - February 27, 2003)

By its first question, the referring court asks whether Article 2 (1) of Directive 76/207 must be interpreted as precluding an obligation on a woman who wishes to return to work with the consent of her employer before the end of her parental leave is to inform the employer that she is pregnant if she can not fully carry out her job due to certain statutory employment bans.

THE COURT OF JUSTICE (Fifth Chamber) ... has ... ruled:

1. Article 2 (1) of Directive 76/207 / EEC ... is to be interpreted as precluding that an employee who, with the consent of her employer, wishes to return to her place of work before the end of her parental leave is obliged to To inform employers that she is pregnant if she is unable to fully carry out her job due to certain statutory employment bans.

Other European countries

The EU directive also justifies the promotion of parental leave with demographic aspects:

“ Family policy must be seen in the context of demographic developments, the effects of aging, the rapprochement between generations and the promotion of women's participation in working life.”

- EG / 96/34 - Part I number 7

There is a comprehensive report by the Equal Opportunities Commission of the Council of Europe on the degree of implementation of Directive EC / 96/34 in the European Union, as well as regular reports by the EU Commission.

Framework agreement of the European social partners

Almost fifteen years after the first framework agreement, the European social partners, realizing that the content had to be updated, signed a new framework agreement on parental leave on June 18, 2009 after several months of negotiations.

The new agreement:

  1. increases the length of parental leave from three to four months for each parent; one of the four months is not transferable to the other parent;
  2. makes clear that it applies to all employees, regardless of the type of their employment contract (fixed-term, part-time, etc.);
  3. offers parents the opportunity to request that their working conditions (e.g. working hours) be adjusted when they return after parental leave;
  4. offers increased protection not only against dismissal, but also against any form of disadvantage caused by exercising the right to parental leave.

In order to implement the framework agreement on parental leave, the Council agreed on November 30, 2009 on a new directive on parental leave, which is to replace Directive 96/34 / EC . On March 8, 2010, the Council formally adopted the new directive. Parliament will vote on the first reading on May 18, 2010 in Strasbourg. The member states have two years to implement the directive after it has been adopted.

See also

Web links

Wiktionary: parental leave  - explanations of meanings, word origins, synonyms, translations

German sources:

European Law:

Comparison between states:

Individual evidence

  1. ^ Republic of Austria: USP: Parental leave. Retrieved February 13, 2018 .
  2. ↑ Christa Lippmann: The historical development of parental leave from baby year to parental leave. (PDF) (No longer available online.) Archived from the original on October 10, 2012 ; Retrieved June 26, 2010 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. P. 4. @1@ 2Template: Webachiv / IABot / www.gleichrechtigung-goes-online.de
  3. ↑ Christa Lippmann: The historical development of parental leave from baby year to parental leave. (PDF) (No longer available online.) Archived from the original on October 10, 2012 ; Retrieved June 26, 2010 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. P. 2 f. @1@ 2Template: Webachiv / IABot / www.gleichrechtigung-goes-online.de
  4. ↑ BMFSFJ brochure on parental allowance, ElterngeldPlus and parental leave. 17th edition, June 2015, p. 80.
  5. ↑ Erfurt Commentary on Labor Law, 15th edition, CH Beck Verlag, Munich 2015, ISBN 978-3-406-66728-2 , p. 810 Rn 3
  6. ↑ Erfurt Commentary on Labor Law, 15th edition, CH Beck Verlag, Munich 2015, ISBN 978-3-406-66728-2 , p. 810 Rn 4
  7. ↑ Germany: Union and SPD agree right of return after part-time. BRF Nachrichten, November 5, 2013, accessed March 19, 2016 .
  8. ↑ Working group: Union and SPD agree right of return after part-time. Spiegel online, November 5, 2013, accessed March 19, 2016 .
  9. ^ Coalition negotiations: Union and SPD for the right to temporary part-time work. BRF Nachrichten, November 5, 2013, accessed March 19, 2016 .
  10. ↑ BAG, May 10, 2016, AZ 9 AZR 149/15
  11. ^ BAG, judgment of April 21, 2009, Az. 9 AZR 391/08
  12. ^ BAG, judgment of February 19, 2013, 9 AZR 461/11, press release of the Federal Labor Court
  13. ^ NJW , 2004, 1559.
  14. ^ Andreas Just: Federal Labor Court. Retrieved May 14, 2017 .
  15. ^ BAG, judgment of May 20, 2008 , Az. 9 AZR 219/07, full text.
  16. ↑ BAG, press release No. 40/08 of May 20, 2008.
  17. ↑ Parental leave. BMFSFJ, December 17, 2015, accessed on March 19, 2016 .
  18. ↑ No. 2 of the general administrative regulation on protection against dismissal during parental leave (Section 18 (1) sentence 4 of the Federal Parental Allowance and Parental Leave Act) of January 3, 2007
  19. ^ Federal Labor Court, judgment of March 25, 2004 Az .: 2 AZR 295/03. With the declaration of admissibility, there is initially a sufficient notification on the basis of which the employer can effectively declare the termination. The pronounced termination can, however, only become legally effective if the notification also develops its "internal effectiveness" and is final. This is not the case if and as long as an objection and an action for avoidance are legally possible or the employee makes use of them. The chronological order of termination and objection is irrelevant, as the suspensive effect also occurs retrospectively.
  20. ↑ End of parental leave: Serious illnesses and deaths. Retrieved March 29, 2019 .
  21. ^ BAG, judgment of December 14, 1961, Az. 5 AZR 180/81; BAG, judgment of April 12, 1973 , Az. 2 AZR 291/72, guiding principle; BAG, judgment of April 27, 1988 , Az. 4 AZR 691/87, full text; BAG, judgment of August 30, 1995 ( Memento of the original of July 18, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. 1 AZR 47/95, full text. @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  22. ^ LAG Cologne, February 5, 1999 , Az. 11 1025/98, guiding principle.
  23. ↑ Federal Ministry for the Family; Ref. 204-2896-4 / 1.
  24. ↑ ECJ, judgment of March 26, 1996, ECJ 1996,1631; ECJ, judgment of March 5, 1996, DVBl. 1996, 427 and ECJ, judgment of May 23, 1996, EuGHE 1996, 2553.
  25. ↑ ECJ April 5, 1979 - Case 148/78 - [Ratti] Slg. 1979 I-1629; July 12, 1990 - C-188/89 - [Foster] Coll. 1990 I-3313 No. 16, 17; December 4, 1997 - C-253 - 258/96 - [Kampelmann et al.] Coll. 1997 I-6907 No. 3; Hirsch RdA 1999, 48.
  26. ↑ BVerfG, decision of April 8, 1987, Az. 2 BvR 687/85, BVerfGE 75, 223 - Kloppenburg decision.
  27. ↑ ECJ July 14, 1994 - C-91/92 - [Faccini Dori] Coll. 1994 I-3347 No. 24; Krimphove: European labor law . 2nd ed., Marginal no. 102.
  28. ↑ a b BAG, judgment of June 5, 2003 , Az. 6 AZR 114/02, full text.
  29. ↑ Schweitzer / Hummer: Europarecht , 5th edition, Rn. 364.
  30. ↑ Hobe: Europarecht , Rn. 140
  31. ^ BAG, decision of April 2, 1996 , Az. 1 ABR 47/95, full text; Krimphove: European Labor Law , 2nd edition, Rn. 96.
  32. ^ BAG, decision of February 18, 2003 , Az. 1 ABR 2/02, full text .; ErfK / Wißmann 3rd ed. EG prep. Rn. 7 f.
  33. ↑ ECJ July 14, 1994 - C-91/92 - [Faccini Dori] -Slg. 1994 I-3325, 3355 ff.
  34. ↑ Newsletter
  35. ↑ BSG, judgment of May 29, 2008 , Az. B 11a AL 23/07 R, full text.
  36. ↑ Art. 1 of the guideline in connection with § 2 No. 1 and 2 of the framework agreement
  37. ↑ according to the report of the commission COM (2003) 358 final , only 5% of fathers take parental leave
  38. ↑ Brussels, March 1, 2006: In March 2006 the EU Commission presented the European Parliament with a roadmap for equality between women and men; 2006–2010 , which sets these goals.
  39. ↑ For an overview, see the report for the Council of Europe ( Memento of the original of February 10, 2006 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF) @1@ 2Template: Webachiv / IABot / www.coe.int
  40. ↑ Council Directive 96/34 / EC of June 3, 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and ETUC , accessed on February 24, 2015
  41. ↑ press release
  42. ↑ Press release of November 30, 2009
  43. ↑ Guideline (PDF; 174 kB).
  44. ↑ link no longer works  ( page no longer accessible , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. .@1@ 2Template: Dead Link / www.juris.de