Parental leave
As a parent, a time period of unpaid leave from work after the birth of a child is referred to in Germany. In this exemption have salaried, self-employed parents therefore not a legal right.
- 3.1 Equality
- 3.2 Right to previous work
- 3.3 European Court
- 3.4 Other European countries
- 3.5 Framework of the European social partners
Term Royal
Europe is widely spoken of parental leave, part of parental leave. Until 31 December 2000 the German legislation of parental leave was talk.
Terms with - holidays be viewed partly as misleading, since, according to critics, the educational work misunderstood as a holiday for the purposes of a recreational holiday and thus underestimated would too easily by these terms.
On the other hand, emphasized the concept - holiday is " concise, because he refers to the temporary leave of absence, and thus on a secured employment relationship ". A leave of absence presupposes an existing working relationship had been terminated with a " commitment to reinstatement ."
Legal regulations
The Federal Parental Benefit and Parental Leave Act ( BEEG ) grants for mothers and fathers to the end of the third year of their child is legally entitled to parental leave. Both parents can be fully or partly together on parental leave. Requirement is that the parents raise the child themselves and look after and live with the child in the same household. Furthermore, it must be the domicile or habitual residence of the parents in the Federal Republic of Germany, and it must be followed up during parental leave any employment in excess of a working week of 30 hours. In addition to workers and self-employed persons and apprentices and employees working from home have a legal right to parental leave (§ 20 BEEG ).
Application for parental leave
Who wants to take parental leave, they must request in writing by the employer and explain at the same time binding should be taken for what times within two years of parental leave no later than seven weeks before the start. If the parental leave taken immediately after the maternity protection period to complete, the parental leave request must be submitted no later than seven weeks before the expiry of the maternity protection period, ie in the first week after the due date (§ 16 BEEG ).
According to the judgment of the Federal Labour Court, it is available to employees after the birth of another child during ongoing parental leave to to finish the first parental leave prematurely and attach the parental leave unused at the end of the second parental leave, unless there are important operational reasons to the contrary.
Part-time employment
During parental leave the employee or the employee is obligated to make any activity. If desired, you can work part-time on up to 30 hours per week.
According to § 15, paragraph 7 BEEG consists in companies with more than 15 employees have a right to part- time work 15-30 hours per week for at least two months or more, if no urgent operational reasons to the contrary, and the occupation was at least six months without interruption. In companies with up to 15 employees, the parents have to agree with the employer to part-time.
If no agreement on the reduction of working time concluded ( § 15 para 4 and 5 BEEG ), the employee or the employee may, if the conditions of paragraph 7 are met, while the total duration of parental leave twice a reduction in his or her labor demand ( § 15 para 6 BEEG ).
In the part-time employment during parental leave obligations to emergency services from the calculation of the 30 hours is not to take out, because these are also considered as working time under Community law.
Training during parental leave
The labor laws, a worker or a worker wants to continue to form during parental leave, so are not in the way. The employer must not support the interest in further education financially.
Does the employer himself occupational vocational training measures through or he wears for extra-company vocational training measures incurred for the participation of workers in such measures costs in whole or in part, is a participation also of workers into consideration that are on parental leave. The selection of participants impinges the employer. The works council may make proposals for the participation of employees or classes of employees of the operation in these measures of vocational education make ( § 98 WCA). In this case, the employer and the works council must reach agreement as to which employees should participate in the training program. The absence of agreement, decided by the arbitration committee.
The employer can during parental leave does not require the participation in an occupational training program.
Relaxing holidays
According to § 17 para 1 BEEG, the relaxing holiday, the due to the employee or the employee for the calendar year, shall be reduced for each full calendar month of parental leave by one twelfth, if the employee or the employee does not or his employer during parental leave. employer part-time working.
According to § 17 para 2 BEEG the employer or the employer is obliged to grant an employee or a worker to him or her pursuant rest leave, which he has or not or not fully received before the commencement of parental leave after parental leave to grant in the current or next holiday year. After judgment of the Ninth Division of the Federal Labour Court § 17 para 2 BEEG is designed so that the resulting prior to a first parental leave entitlement to annual leave is transferred to the period after a further parental leave which immediately follows the former parental leave.
Protection against dismissal during parental leave
From the time of the required time to the parents, but not earlier than eight weeks before the commencement of parental leave, and during parental leave is in accordance with § 18 BEEG basically prohibits dismissal for the employer. The prohibition of dismissal also applies in the event of insolvency of the employer or by a transfer of operations during parental leave.
In special cases, a termination of the authority responsible for occupational safety and health agency may be declared admissible in exceptional cases, such as closure of business or individual operating components, for serious offenses of the employee or heavy labor contractual breaches of duty as well as endangering the economic existence of the operation by the continuation of the employment relationship.
An employer gave notice of compliance may be appealed by the employee within one month. The lodging of the appeal means that the decision will not take effect until a final decision is on appeal. In order to protect our own rights of workers also may charge a unfair dismissal claim to the Labour Court within three weeks at a pronounced termination; he does not do this, the termination shall take effect ( § 4, § 7 Consumer Protection Act).
End of the parental leave
With the end of parental leave the employment relationship lives to the conditions that existed prior to the parental leave, automatically back up. This requires no prompts, special declarations or prior notice by the employer or the employee. If the working time is reduced during parental leave, shall apply with the end of the parental leave back to the original work. If necessary, the employee is under the general provisions of part-time and temporary employment law a right to part-time employment ( § 8 TzBfG ).
If an employee after the end of parental leave for any reason can not go to work immediately, eg lack of child care, the employee should clarify this in advance with the insurance company because the employee leaves after 30 days of unpaid leave from the Social Security (§ 7 SGB IV).
Special right of termination
The employee may terminate 19 BEEG with a notice period of three months to the end of parental leave in accordance with §.
No right on earlier work
The German case-law in the public sector on the assumption that every job can be assigned within the salary grade. According to the jurisprudence of the state labor court Cologne, this goes so far that " even a complete withdrawal of supervisory function " is possible " if management responsibility is not part of the activity characteristics of the salary grade. "
A direct effect of the Directive 96/34/EC has been disputed by the German government. The EU has asked the federal government in this regard to comment. Whether an infringement procedure before the European Court of Justice is initiated, can not be predicted.
However, there are judgments of the ECJ on liability for damages in case of non implementation (ECJ Francovitch ) and to or incorrect transposition of EU directives. For the public service the rules are directly binding.
Policies can have direct effect only in exceptional cases. According to settled case law of the European Court of Justice, a Member State which has not or not correctly implemented a directive within the prescribed period, with respect to its citizens not rely on this tardiness. In the interest of practical enforcement of Community law in Directive have direct effect in favor of the citizen also in this case, if the provision in question contains a content sufficiently precise and unconditional control.
In this case, limited the direct effect and the associated priority of application of an unimplemented directive solely on the relationship between citizen and state säumigem. This is constitutionally unobjectionable. Contrast, would the award of a direct ( horizontal ) effect also in the ratio of private parties to move the competence under the EC Treaty at the expense of the Member States which have so far not waived its sovereign rights in favor of Community institutions.
Therefore, the following shall apply to the private sector:
Aa ) To the Community Treaties policies have generally not directly applicable in the Member States. This is not to generally and directly effective European legislation. According to Article 249, paragraph 3 EC directives to address the Member States, and oblige them to implement in their regulated targets into national law. In the relationship between individuals guidelines apply therefore not immediate. The European Court of Justice rejects the assumption of a direct effect of directives in the relation of individuals to each other (so-called horizontal effect).
This results in the opinion of specialist lawyers to the fact that often the employment relationship eventually work judicially accomplished by the exercise of the right to parental leave as a result of disputes arising between employers and employees through a consensual resolution agreement against payment.
Social security benefits after the end of parental leave
During parental leave, which is covered in the first three years of life of the child, the parent is insured is unemployed if he was employed insurance before the education. If the parent is after the end of parental leave, unemployed and he answers unemployed at the employment agency, he may be entitled to unemployment benefits. However, was achieved in the last two years before the unemployment is not at least 150 calendar days to pay, so the level of unemployment benefits is not based on the level of income, which was occupied before the parental leave, but unemployment benefits are the professional qualification sized accordingly fictitious.
Reference to European law
Equality
Directive 96/34/EC of the framework agreement of the European social partners (UNICE, CEEP and the ETUC ) of 14 December 1995 was binding on parental leave. The policy consists of extensive considerations that are considered " soft law " and are binding parts, in particular Part II of the Framework Agreement.
Parental leave should apply to the policy for both parents; particular states § 2, No. 2, in the opinion of the signatory parties the right to parental leave provided " in principle should not be transferable ." In Germany, although mothers and fathers have formally the same claim, but in practice take the vast majority only the mothers parental leave. This raises the question of whether the legislator is obliged to limit or promote through other legislative measures, a more uniform use of parental leave, the transferability of the parental leave. The latter could be about measures that could encourage men to take up family responsibilities, in particular through incentives to take parental and paternity leaves and to share leave entitlements with women. Other measures would be to allow flexible working arrangements for both women and men and to promote the development of care for children.
Constitutional objections to a breakdown between the two partners may be objected that there is no constitutional entitlement to a minimum period of parental leave; thus a woman the transfer of two months can not ask. In addition, is constitutionally recognized that the promotion of equal treatment may also include positive measures such as preferential hiring of women.
Right to previous work
Paragraph 2, item 5 Following the parental leave, workers shall have the right to return to the same job or, if that is not possible to be assigned according to their employment contract or employment relationship of an equivalent or similar job.
According to the report for the Euro Europe only the right to a comparable job is implemented in Germany.
In comparison, the Directive in Austria / Vienna is almost 1:1 implemented as a "right to the former, an equivalent or similar posts " in the law contract staff; whereby the earlier posts, then if this is not possible, first, an equivalent post; and if this is not possible; a similar post will be granted.
Time how long a claim on the earlier work consists is limited partly deviating time in the European countries.
European Court
Case 1 (ECJ C-320/01 - 27th February 2003)
By its first question, the national court asks whether Article 2, paragraph 1 of Directive 76/207 must be interpreted as meaning that it precludes that an employee who wishes to return with the consent of their employer before the end of her parental leave at their workplace obliged is to inform the employer that she is pregnant, if they can not exercise their activities in full because of certain legislative prohibitions.
THE COURT (Fifth Chamber) ... performed ... hereby rules:
1 Article 2, paragraph 1 of Directive 76/207/EEC .... is to be interpreted as precluding the that an employee who wishes to return with the consent of their employer before the end of her parental leave to their work, is obliged to notify employer that she is pregnant, if they can not exercise their activities in full because of certain legislative prohibitions.
Other European countries
The EU directive justifies the promotion of parental leave with demographic aspects:
EG/96/34 - Part I, paragraph 7 Whereas family policy should shall be seen in the context of demographic changes, the impact of the aging population, closing the generation gap and promoting women's participation in the labor force
The degree of implementation of the Directive in the European EG/96/34 there is a comprehensive report of the Equality Commission of Europe under links, also regular reports from the European Commission.
See also: Parents money in other European countries
Framework agreement between the European social partners
Nearly fifteen years after the first framework agreement have the European social partners in the realization that a substantive update is required, after several months of negotiations on 18 June 2009 signed a new framework agreement on parental leave.
The new agreement:
In order to implement the framework agreement on parental leave, the Council agreed on 30 November 2009 on a new directive on parental leave, which is to take the place of Directive 96/34/EC. On 8 March 2010, the Council adopted the new policy to formal. Parliament approved at first reading in Strasbourg on 18 May 2010. For the implementation of the Directive, Member States have two years after its adoption.