A demand for parental leave by telefax does not meet the statutory condition of being in writing

On 10 May 2016, the Federal Labour Court ruled that sending a telefax does not meet the formal prerequisites for a valid demand for parental leave (BAG, docket number 9 AZR 145/15).

The plaintiff was employed by the defendant from January 2012. The defendant regularly employed not more than ten employees. After the birth of her daughter on 23 May 2013 the plaintiff sent a telefax to the defendant with the subject matter “parental leave”. The defendant terminated the employment contract with notice on 15 November 2013 and with effect from 15 December 2013. The plaintiff asserted that she validly demanded parental leave. As a consequence, the termination would be invalid pursuant sec. 18 para. 1 sent. 1 BEEG (Federal Parental Allowance and Parental Leave Act). The defendant would at least show contradictory conduct if he claimed formal invalidity of the demand whilst not reacting to her absence from work for over four months.

The Federal Labour Court ruled that the termination was valid because the plaintiff had not validly requested to go on parental leave which would have led to a prohibition of termination at that time.

The Federal Labour Court founded its decision in part on the protective purpose of sec. 16 para. sent. 1 BEEG. The written form in line with sec. 126 para. 1 BGB (Civil Code), which requires the signature of the person who initially issued the document, ensures that the recipient is able to clearly identify this person. Due to the extensive consequences of parental leave (e.g. no claim for remuneration for this period of time) this prerequisite also serves as a warning function for the employee according to the Federal Labour Court. Moreover, the defendant did not show contradictory conduct because he unsuccessfully asked the plaintiff for the date of birth of her child. Without this information the defendant could not calculate the end of the employment prohibition and determine when he could demand the plaintiff’s service again.