Germany: The Time Period of Parental Leave does not Count Towards Career Level in Terms of Collective Agreement

The parties are in dispute over the allocation of the plaintiff’s career level for the period 2017—2022 in light of the parental leave taken.

The plaintiff has been employed by the defendant since March 2006. The Collective Agreement for the Public Sector in the version applicable to local authority employers and supplementary collective agreements shall apply to the employment relationship with reference to the employment contract.

Pursuant to this collective agreement, the determination of the career level relevant for the remuneration amount also depended on the time worked at the previous levels. The employer suspended the time counted towards the career level during the time the employee was on parental leave. The employee challenged this, and this claimed consideration of a higher career level.

 

Key Issues

The Federal Labour Court has ruled that the suspension of time at the relevant career level during parental leave is not in breach of higher-ranking legislation.

In the opinion of the Federal Labour Court, there is no indirect discrimination because there is no comparability between active employees and employees on parental leave. The Federal Labour Court states that promotion to a higher level on the basis of experience in active employment is legally permissible. In contrast to active employment, no work experience is gained during the period of parental leave. The difference in treatment is not due to gender, but to a lack of experience in this case.

The Federal Labour Court also found that the provision did not violate the prohibition of discrimination under Section 15 (2) sentence 6 of the Federal Parental Allowance and Parental Leave Act. The only purpose of this provision is to ensure that employees are in the same position at the end of parental leave as they were before. In the opinion of the Federal Labour Court, the collective agreement provision is in line with the regulation. This is because the collective agreement regulation ensures that the time completed before the start of parental leave is retained at the respective level and is continued seamlessly after the return to work.

Practical Point

• While statutory maternity leave periods may not lead to any detriment for the employee, parental leave taken may be disregarded based on a corresponding provision when determining the career level in terms of a collective agreement.
• Parental leave may also be considered to pro-rate claims for variable remuneration and holidays. However, employers must ensure that this is clearly regulated and communicated to the employee.