No Increase of Working Time with the Intention to Make Use of the Early Retirement Scheme

An employer did not have to honour an employee's request to increase the working hours, since the only purpose of the request was to subsequently make use of the early retirement scheme on the basis of a full-time employment. Thus, the employee misused the right to adjust the working hours in terms of the purpose for which it was granted, and thus an abuse of rights was constituted.
An employee had been working for a dairy cooperative since 1979 when, for health reasons, he converted his full-time employment into a 50% employment contract as of 1 July 2021. For the remaining 50% he had a part-time pension. With effect from 1 September 2022, the employer had implemented an early retirement scheme, which enabled employees with 45 years of service to leave their jobs before reaching the state pension age. The possibility of early retirement was far more attractive for the employee, since he then did not have to recourse to his pension rights to reduce the working hours.
The employee, therefore, requested the employer permission to use the early retirement scheme on the basis of a full-time employment, invoking the hardship clause in the early retirement scheme. The employer replied, stating that that the employee could make use of the early retirement scheme on the basis of his part-time employment and that there was no reason to apply the hardship clause. The employee said that he was angry and disappointed about this reaction, but the employer stood his ground.
Then the employee submitted a request to increase his working hours to full-time again. The employer rejected the request, because the only purpose of the request was to be able to claim a higher income on the basis of the early retirement scheme.
Then the employee claimed in summary proceedings that the employer should allow him to resume his work on a full-time basis. According to the employee, there were no compelling business interests for the employer to oppose acceptance of his request. The employer, however, held the opinion that the employee misused his right to request an increase in working time, since he only made the request in order to make use of the early retirement scheme on the basis of a full-time employment.
The Sub-district Court rejected the temporary provisional, claimed by the employee, because it expected that the employee's claim would also be rejected in proceedings on the merits. Under the Flexible Working Act , an employee can ask for an increase of working hours, but the explanatory memorandum to this Act shows that it had been the legislator’s aim to effectively support the reconciliation of work and private life.
The legislative history shows that it would also constitute an abuse of the right to ask for an adjustment of the working hours if an employee would ask for an increase during illness or if a pregnant employee would ask for an increase of working hours shortly before her maternity leave with the purpose of receiving a higher benefit during her pregnancy and maternity leave.
The Sub-district Court’s conclusion was that there is an abuse of right if the right to adjust the working hours is used for a purpose other than that for which it had been granted. Even though, in principle, the employee’s motives for requesting an adjustment of working hours do not play a role in deciding whether or not to grant the request, according to the Sub-district Court, the legislative history shows that the freedom to request an adjustment of the working hours is limited by cases involving an abuse of rights.

The Flexible Working Act was formerly known as the Working Hours (Adjustment) Act.
From the date on which the employee could not only request an adjustment of the working hours, but also an adjustment of the workplace, the name of the Act was changed into “Flexible Working Act”.
In practice, the right to request adjustment of the working hours is in particular used by young workers (more often women than men), who want to reduce their working hours in order to increase their ability to care of their young children. From its outset, however, the law has also recognized a right to increase the working time. This option is much less frequently asked for. Employers also less frequently have objections to it.
The employer may refuse a request to adjust the working hours only if there is a compelling business interest that precludes granting the request. Jurisprudence shows that such an interest does not easily apply.
The above judgment of the Sub-district Court, however, shows that employers may refuse requests to adjust the working hours if they were made to ensure additional benefits that have nothing to do with effectively supporting reconciliation of work and private life.
This was particularly clear in the above case, since the employee had originally reduced his working time for health reasons.