The failure to count parental leave on the steps of the TVöD term means either direct or indirect discrimination against women because of their sex. As the levels rise to honor the experience brought about by greater improvement in work performance and during parental leave no work experience is gained, is the TVöD onto an objective criterion that has no relation to discrimination based on sex.
The case:
The applicant has worked in the costume department of the defendant maintained by the Municipal Theatre and did tailoring. Following the birth of her second child she was, 28.4.2005 to 29.2.2008 on maternity leave. Meanwhile entered into force on 10.01.2005 in the TVöD force. The applicant was fairness in the charges grouped in group 5. At level-up caused the defendant to parental leave pursuant to § 17 para 3 TVöD ignored and compensated by the applicant after the stage 2 pay band.
coveted With its application, the applicant to establish that the defendant is under obligation to pay for the level 3 of the relevant pay band. At the same time she made the resulting differences (about 100 € gross month) claim for the period March 2008 to August 2008. The exclusion of the parental-years at the level up, constituted an unlawful discrimination because of sex dar. The complaint was not successful in all instances.
The grounds of the BAG:
The applicant is not entitled to compensation for the level 3 of the relevant pay band. The defendant has requested the assignment of the applicant's right to stage the period in which the applicant had claimed parental leave, leave not taken into account.
The rise in the next stage of a pay band is a forward in § 16 para 3 TVöD (MCA) in the individual fixed period of continuous activity in the same pay band. According to § 17 para 3 sentence 1 TVöD following are among the terms of protection under the Maternity Protection Act (Maternity Protection Act) of continuous work the same. Parental leave is however up to a period of five years, according to. § 17 para 3 sentence 2 TVöD but do not count on the steps of life, takes place at a longer period according to § 17 para 3 sentence 3 TVöD grds. downgraded by one level.
The order in the collective agreement provided for inhibition of the step duration up to a period of five years through the use of parental leave, is compatible with EU law and with the Basic Law.
out the failure to count the time parents in particular not to any direct or indirect discrimination against women because of their sex. Since the employment relationship is suspended during parental leave under suspension of the mutual primary, During this time no work experience is gained. The level-up system of pay to the TVöD but just reward the entrant with more experience improve the performance. The TVöD is so off on an objective criterion, which has no relation to discrimination based on sex.
(BAG, decision of 01.27.2011, 6 AZR 526/09)
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