German court reinforces binding nature of parental leave requests

This applies even where personal or family circumstances change before the parental leave period begins. The binding effect of a parental leave request will only cease in limited statutory exception cases.

Sarah Klachin, Munich-based employment law expert at Pinsent Masons, said: “From an employer’s perspective, the decision is to be welcomed, as it further emphasises the binding nature of a parental leave request.”

The case (link in German) concerned an employee who had applied for one year of parental leave. Before the leave commenced, he separated from the child’s mother and moved out of the family home, while the child remained with the mother.

As the employee no longer fulfilled the statutory requirements for parental leave and parental allowance, he sought to continue working instead. He argued that the loss of entitlement to parental allowance constituted an unreasonable hardship. The employer refused to continue his employment, having already engaged a temporary replacement employee.

The BAG ruled in favour of the employer. According to the court, an employee remains bound by a parental leave request even if the conditions giving rise to the entitlement subsequently cease to exist.

Except for statutory exceptions, parental leave may only be terminated early with the employer’s consent. In cases involving the birth of another child or particular hardship, such as severe financial distress, the employer may refuse consent only on compelling operational grounds. These principles also apply where an employee wishes not to commence the parental leave that has already been requested.

The court further held that the loss of entitlement to parental allowance, in itself, is insufficient to establish the particular hardship ground of severe financial distress.

Klachin said: “The court makes it clear that the early termination of parental leave, or a decision not to commence it after it has been requested, is only possible in the limited circumstances provided for by law. This provides a high degree of legal certainty for employers whose workforce and operational planning has been organised on the basis of an employee’s anticipated absence.”