Unilateral withdrawal of a part-time application not possible - appeal permitted
A ruling by the Düsseldorf Higher Labor Court has recently been approved for appeal due to the fundamental importance of the legal issue. The appeal is pending before the BAG under case no. 9 AZR 312/20.
The course of action
Anyone wishing to reduce their working hours from full-time to part-time as stipulated in their employment contract must do so in accordance with § Section 8 of the Part-Time and Fixed-Term Employment Act (TzBfG) inform their employer in writing at least three months before the desired change in working hours. The employer must inform the employee of their decision no later than one month before the planned changeover. If the employer fails to meet the deadline, the working hours will be reduced in accordance with the employee's wishes. But can the employee also unilaterally withdraw their part-time request?
The LAG Düsseldorf dealt with this question (judgment of 28.04.2020 - 8 Sa 403/19). An employee wanted to reduce his weekly working hours from 37.5 to 20 hours starting on 01.10.2018 and submitted his part-time entry to his employer on 14.06.2018 in due time. The employer then scheduled two appointments for the employee to explain his request. However, none of these hearings took place due to illness. On 29.08.2018, the employer received a letter in which the employee withdrew his application for part-time work with immediate effect. On 30.08.2018, i.e. one day later, the employer wrote a letter in which it agreed to the part-time employment and sent it to the employee.
In appeal proceedings: No unilateral withdrawal possible
The employee then wanted the labor court to determine that a full-time employment relationship with full-time remuneration still existed. While the labor court upheld the plaintiff's arguments, the Düsseldorf Higher Labor Court ruled against the employee in the appeal proceedings.
The unilateral withdrawal of a request for part-time work within the two-month discussion phase is excluded according to the LAG Düsseldorf, as the employee makes a declaration of intent and is therefore bound by it for two months. General contract law states that such a request must be so specific that the addressee can agree to the offer with a simple „yes“. In addition, Section 8 TzBfG does not contain any reservation of revocation in favor of the employee. Despite the withdrawn application, the employer was able to agree to the part-time offer and the employee is not entitled to a full-time position.
