Ban on dismissal during parental leave – the devil is in the details

An important provision accompanying the right to parental leave is the special protection against dismissal in accordance with Section 18 of the Federal Parental Allowance and Parental Leave Act (BEEG).
According to this provision, the employer may not terminate the employment relationship from the time parental leave was requested and during the parental leave. Only in special cases can a dismissal be declared permissible by the highest state authority responsible for occupational safety.
An employee who can claim parental leave essentially has it in his own hands to bring about the great advantage of the special protection against dismissal under Section 18 BEEG: he or she simply has to effectively request parental leave.
A recent decision by the Federal Labor Court dated May 10, 2016 (ref.: 9 AZR 145/15) shows that this is not so easy in individual cases.
The crux of this decision is the fact that there is a formal requirement for the employer to take parental leave. According to Section 16 Paragraph 1 Sentence 1 BEEG, the employee must request parental leave from the employer in writing before it begins. This sounds clear, but it is not. Because what does “written” actually mean?
The written form is required in many places in legal transactions. However, what is sufficient in individual cases to maintain this written form is often judged differently by the jurisprudence. In some cases, for example in the case of compliance with exclusion periods, which is particularly important in labor law practice, an email or fax is sufficient to maintain the written form.
However, things are different when it comes to parental leave. In the aforementioned decision of May 10, 2016, the Federal Labor Court decided that the request for parental leave requires strict written form within the meaning of Section 126 Paragraph 1 of the German Civil Code (BGB). The employee must therefore sign the parental leave request personally with his or her name. Theoretically, a notarized hand signal would also be possible, but this case is not relevant in practice.
In the underlying case, the plaintiff, a paralegal, requested parental leave from her employer, a lawyer, by fax. A few months later, during “parental leave,” the lawyer terminated the employment relationship. The approval of the highest state authority responsible for occupational safety was not available. The termination would therefore have been fundamentally invalid if the parental leave had been requested correctly, i.e. in particular “in writing”. However, the Federal Labor Court decided that a fax is not sufficient for this. Rather, the employer should have received the hand-signed original of the parental leave request. But this did not happen.
The Federal Labor Court still leaves a small way out for such mishaps: In individual cases, an employer can behave in breach of trust if they rely on the lack of a written request for parental leave. He then violates the principle of good faith and trust (§ 242 BGB) and must allow himself to be treated as if the request for parental leave had been valid. However, there must be special circumstances for a breach of trust, and in particular the mere reliance on a formal requirement is not in itself breach of trust. In the underlying case, the Federal Labor Court found no evidence of breach of trust.
The Federal Labor Court therefore (unlike the previous instance) considered the termination given by the lawyer to his paralegal to be effective.
In the future, when requesting parental leave, employees should make sure that they send the employer the original, signed document. You should neither just fax the document, nor should parental leave be requested only by email. In these cases, the strict written form of Section 126 Paragraph 1 of the German Civil Code (BGB) is not maintained. Strictly speaking, the employee then does not go on parental leave and cannot rely on the ban on dismissal in Section 18 BEEG, especially if the employer terminates the contract.
Link to the BAG press release:
http://juris.bundesarbeitsgericht.de/cgi-bin/rechtsprechung/document.py?Gericht=bag&Art=pm&Datum=2016&nr=18649&pos=8&anz=31&titel=Inanspruchnahme_von_Elternzeit_-_Schriftformerfordernis