OGH: Flexible Working Hours Not Covered by Dismissal Protection

May 14, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) had to determine whether setting working hours that had previously been arranged freely constitutes parental part-time work under the Paternity Leave Act (Vaeter-Karenzgesetz, hereinafter VKG), thereby triggering protection against dismissal.

In the case at hand, a senior executive had brought a case seeking confirmation that his employment contract remained in effect while asserting his right to parental part-time work. Initially, the OGH confirmed that, as a rule, the VKG applies to senior executives.

Set hours rather than flexible shifts

Pursuant to his employment contract, the claimant retained considerable discretion over his working hours. He notified his employer of his intention to take parental part-time leave while maintaining the overall number of working hours. Instead, he requested that fixed working hours be implemented.

Section 8h of the VKG stipulates that employees are entitled to request either a reduction or adjustment of their working hours. This provision is designed to enhance the balance between childcare responsibilities and employment.

No significant alteration in work time

The OGH affirmed the court of appeal’s ruling, concluding that no alteration in working hours occurred under these circumstances. Individuals who retain autonomy over the commencement and conclusion of their workday may not assert a change in working hours solely by formalising previously flexible scheduling.

In addition, the preferred set working hours closely matched those that had already been worked. As a result, there seemed to be no extra advantage for childcare purposes.

Since parental part-time work was not utilized as intended, the special protection against dismissal provided under the VKG was not applied. The OGH clarified that this protection serves to support employees exercising their rights under the VKG, rather than existing as an independent entitlement. Consequently, the court found no deficiency in legal protection in this instance.

No breach of EU law

The claimant referenced the EU Directive on Work-Life Balance (Directive 2019/1158). Nevertheless, the OGH determined that no conflict existed, stating that changing freely allocable working hours to fixed hours does not amount to a more flexible arrangement.

OGH, 9 Ob A4/26t, 19 February 2026