Part-time application - Reasons for rejection
January 14, 2016 | 30,00 EUR | answered by Jan Wilking
Hello,
I am a development engineer at a semiconductor manufacturer (around 900 people) for 33 years, 60 years old, and I would like to work only 3 days a week in the future, so I am planning to submit a request for part-time work. I am familiar with the formalities, everything that can be "googled". What is not clear to me is what reasons could be given for rejecting the request. Of course, I have certain experience and specialized knowledge that is not immediately shareable with others. And of course, I am currently fully occupied with work, so a 40-hour work week is barely enough. However, there are enough colleagues who are equally qualified and could familiarize themselves with my topics to make up for my lack of time. Of course, they are all overloaded as well. This is exactly the stress that I want to reduce through part-time work, because I feel that I am no longer able to cope with it in the long term. Personal reasons also play a role in this endeavor. The question is, can the employer reject the request on the grounds that the workload does not allow it, meaning I am indispensable. I am one of about 50 development engineers. Of course, he can reject it for any reason, but for example, would a court also agree with him? Probably a clear answer is not possible, but an opinion would already help me.
Dear seeker of advice,
I am happy to answer your inquiry taking into account the description of the situation and your efforts as follows:
The employer can reject the reduction of working hours for operational reasons (§ 8 para. 4 TzBfG). Such operational reasons that oppose part-time work exist, for example, when the reduction of working hours significantly impairs the organization, the workflow, or the safety in the company or causes disproportionate costs.
The employer's demanded proof of a "significant impairment" or "disproportionate costs" implies that implementing the part-time request would result in a disturbance of the current organizational workflow and additional costs, as long as they are in a reasonable proportion to the part-time request. Rather, the employer must make reasonable efforts, especially utilizing his right to direct, to eliminate or minimize disturbances in workflow and company organization through internal reorganization and redistribution of working hours.
Therefore, the Federal Labour Court (see e.g. BAG, judgment of November 13, 2007 - 9 AZR 36/07) sets high requirements for proving such operational reasons: the employer must present a working time concept supported by reasonable and plausible economic or corporate policy reasons. The employer must explain why the part-time work of the employee contradicts the company's concept. For example, that customer support should only be provided by one person or the presence of certain employees is constantly required. The organizational concept must determine the working time regulation.
Furthermore, it is then examined to what extent the desire for reduction contradicts the organizational concept. It is therefore important to determine whether the organizational concept can still be carried out sensibly if the employee goes part-time with a certain distribution of work.
If it turns out that the organizational concept actually opposes the specific part-time request, a third step follows, which involves a balancing of interests. The interests of the employee, including personal reasons such as health or the need to care for relatives, are weighed against the interests of the employer.
If in your company there are numerous colleagues available who are adequately qualified and can take over your tasks after a short training period, it may be difficult for the employer to prove legally valid operational reasons for rejection. If you can also provide understandable personal reasons for part-time work, I see very good chances of eventually enforcing your part-time request, even with judicial assistance.
However, I hope that an amicable agreement with the employer is possible and remain
Yours sincerely,
Jan Wilking, Lawyer
