Written form requirement for application for parental leave, BAG 10.05.2016 - 9 AZR 145/15

The legal dispute recently decided by the Federal Labor Court concerned a paralegal who had declared to her employer by fax that she would take two years' parental leave. Her employer terminated her employment in the meantime. She took legal action against this termination. She argued that a dismissal was not permissible under Section 18 BEEG as she was on parental leave at the time. The defendant employer, on the other hand, argued that the notification by fax was not sufficient and therefore did not comply with the written form requirement of Section 16 BEEG.

The labor court ruled in favor of the plaintiff. The LAG confirmed the judgment on the defendant's appeal.

The BAG ruled differently and denied the plaintiff special protection against dismissal. According to the BAG, the parental leave request pursuant to Section 16 BEEG requires a written declaration in the strict form of Section 126 BGB. Without a handwritten signature, the declaration was not formally effective and therefore void pursuant to Section 125 BGB. The BAG explained the application of the strict written form with the importance of the consequences for the employer. The employer can only be provided with the necessary planning security if it can rely on the seriousness of the declaration by means of a personally signed declaration. This is because both emails and faxes could be sent by any person without the recipient having certainty about the identity of the sender and the seriousness of the declaration. Another argument put forward by the BAG was the fact that the request for parental leave is a unilateral, legally formative declaration of intent that must be received and has a direct effect on the employment relationship. Due to this importance, a strict written form requirement must apply.

However, the judges also pointed out that in individual cases, the employer's invocation of the formal invalidity could be contrary to good faith. However, the BAG was not able to identify any special circumstances that could justify the employer's reliance on the invalidity of the form in breach of trust within the meaning of Section 242 BGB.

Conclusion: As a result of this ruling, employees should ensure in future that they comply with the strict written form requirement of Section 126 BGB when requesting parental leave in order to remain subject to the special protection against dismissal. Employers should also take a close look at the request in future.