Childcare leave - withdrawal of the application for reduction of the working time

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Returning from parental leave may be associated with a reduction in the position of a given employee. Interestingly, the reduction of the full-time job takes place at the request of the employee. Is the request for a reduction in employment definitive or is it possible to withdraw the request for a reduction in the employment position? We answer in the article.

Return from parental leave and employee rights

The main purpose of the parental leave is to provide care for the employee's small child. In accordance with the provisions of the Labor Code in force, the childcare leave lasts a maximum of 36 months and may be used by the employee until his child is 5 years old.

An employee may therefore take up a maximum of three-year childcare leave or shorten its duration and return to his workplace faster. Regardless of how long the leave period is, each employee who took it and returns to work has certain rights.

After using the childcare leave, the employee has the right to return to the previously held position. If it is not possible for organizational reasons, the employer must send the employee to another, equivalent job corresponding to his qualifications. Importantly, the amount of remuneration of such an employee cannot be lower than the salary he would have received if he had returned to his actual position.

An employee returning from parental leave is also entitled to apply for a reduction in the working time.

The right to reduce the employment rate

The possibility of reducing the working time appears in each case of returning from a childcare leave. The employee can choose to return to his or her full-time position or to reduce it.

Remember that the scope of the reduction in the working time depends solely on the decision of the employee. He may also require a job of no less than of a full-time job.

However, the right to reduce the workforce is not indefinite. The lower working time may apply for a maximum of 3 years, that is as long as the longest possible childcare leave.

The employer is bound by the employee's request - he cannot refuse to reduce the working time, unless it is inconsistent with the applicable provisions of labor law. It is worth noting that an application for a reduction in the employment status may be submitted many times.

Example 1.

An employee returns from parental leave and applies for a reduction in the amount of her full-time job to ¾ for 3 months. After the indicated time has elapsed, he or she may apply for a further extension of the reduced work-time base, e.g. for another 3 months. It also has the option of changing the amount of the reduced job, e.g. to ½. Applications for reduction of the employment period may be repeated, provided, however, that they are submitted within 3 years from the date of return to work from parental leave (after this time, the employee loses the right to demand a reduction in his / her working time).

Remember that an employee must submit an application for a reduction in the working time at least 21 days before the commencement of the reduced-time work. If he does not do this, the employer will reduce the number of hours he is entitled to, not later than 21 days from the date of submitting the application.

Withdrawal of the application for reduction in the working time

We already know that the employer is each time bound by an application for a reduction in the working time due to return to work after parental leave. Does this also apply if the employee decides to withdraw such a request?

The withdrawal of an application for a reduction in the working time is an employment law. An employee may use it at any time, even one day after submitting a request for a reduction in employment. However, we should remember that the effectiveness of the withdrawal of such an application depends on the goodwill of the employer.

The employer must therefore accept the application for reduction of the working time after the parental leave, but may reject the request for its withdrawal. The employer has full discretion in this respect and the freedom to make the final decision.

Example 2.

On January 2, 2020, the employee returned to work after parental leave and applied for a reduction of his working time to ½ for 6 months (i.e. until July 1, 2020) - the employer must comply with this request. On January 7, 2020, the employee decided to withdraw the submitted application and expressed his willingness to return to work on a full-time basis, as was the case before his parental leave. The employer may or may not allow the employee to withdraw such a request. If he does not accept the employee's request, he or she will have to work on the requested lower working time or possibly submit a new application for a reduction of the working time to a different value or for a different period (e.g. up to ¾ working time for 2 months) - such an application must already be submitted accepted by the employer.

Form of withdrawal of the application for reduction of the working time

Withdrawal of an application for a reduction in the working time is not really subject to strict formal requirements. In other words, such a request can be made orally or in writing - just like its withdrawal.

The effectiveness of withdrawing an application for a reduction in the working time is fully dependent on the employer's decision, which cannot be said about the withdrawal of an application for a parental leave. In the latter case, the employee has the right to resign from the previously applied leave, provided, however, that he does so no later than 7 days before its commencement date. Start a free 30-day trial period with no strings attached!

Withdrawal of the application for a reduction in the working time - is it really dependent on the consent of the employer?

Due to the lack of provisions allowing for the withdrawal of an application for a reduction in the working time, its effectiveness depends on the consent of the employer. On the other hand, there are voices in the doctrine that claim that the provisions allowing for the withdrawal of the application for a parental leave should be applied in this respect.

The supporters of this theory argue that the withdrawal of the application for a reduction in the working time does not depend on the consent of the employer in any case. If the employee decides to make such a decision, the supervisor should absolutely accept the subordinate's request. It is assumed that it should take place no later than 30 days before the planned return to the previous working time.

In fact, the above view belongs to the minority. Practice shows that the withdrawal of an application for a reduction in the working time is fully dependent on the employer's decision. In other words, if the employer does not agree to withdraw the application to reduce the employment, there are no effective legal tools that would force him to take a different decision.

Right to withdraw your application for a reduction in the working time

Despite the lack of legal regulations allowing for the withdrawal of the application for reduction of the working time for an employee who has returned from parental leave, it should be recognized that the employee has the full right to do so.

We should remember, however, that the effectiveness of withdrawing such an application is not determined by the form or time of its submission, but by the goodwill of the employer.

If the employer agrees to withdraw the application, the employee will be able to return to his previous job (i.e. the one that was in force before submitting the application for the reduction of the working time). If, on the other hand, the employer does not express his consent in this respect, the employee will have to perform his work on a reduced-time basis for the previously requested period.

In such a situation, however, the solution may be to submit an application for a new job in another period. This type of letter must be absolutely approved by the employer.