Fragrobin : termination after parental leave – what now??

You should know this information about termination after parental leave so that you know you can do something about it, and above all what!

Parental leave is an opportunity for one or even both parents to take more intensive care of their offspring in the period after the birth or even at a later date. Job security is an important asset, which is why some parents fear taking parental leave and possibly losing their jobs. But how justified is this concern actually? Can the employer simply give notice during or after parental leave?

1. Parental leave – how long does it last and who can take it??

Parents have a right to unpaid leave from work. Cause is the birth or care of their child. The legal basis is Section 15 BRrzGG (Federal Child-Raising Allowance Act), according to which employees and trainees are entitled to parental leave.

The prerequisite is that the beneficiary lives with the child in the same household, that he or she has the child who was born after 1. January 2001 must be in his or her own care and that he or she has custody of the child or has a similar relationship with him or her. Depending on the start of the parental leave, it must be taken immediately after the period of leave specified in § 15 para. 2 S. 2 BRrzGG regulated maternity protection period or after the birth of the child can be requested. The application must be submitted in writing to the employer. Include a statement of the period of time for which parental leave will be claimed, with both parents able to take up to three years off work each. In the case of a separate claim, the maximum limit of three years in total remains for both parents. This declaration is legally binding.

2. Termination: Effectiveness during parental leave

During parental leave, termination is generally not possible. The relevant date is the date of application before the start of parental leave, during which employees enjoy special protection against dismissal. Termination during parental leave can only be declared permissible as an exception and only in special cases. However, this decision is not the sole responsibility of the employer. Instead, in accordance with Section 18 BEEG (Federal Parental Allowance and Parental Leave Act), he or she must obtain the approval of the competent supreme state authority or the authority designated by it. Conversely, this means that you as an employee are better protected against dismissal by taking parental leave than without it. If it is a fixed-term employment contract, the fixed-term employment relationship ends at the time at which it would have ended even without parental leave.

3. Dismissal: Effectiveness during parental leave – protection against dismissal for parents

During parental leave, protection against dismissal must be observed by the employer. In order for the employer to be able to adjust to the employee’s absence, the claimant must submit a written request for parental leave to the employer. For births occurring by 30. June 2015 have taken place, a notice period of at least seven weeks before the scheduled start date shall apply to. Parents whose children were born on 1. July 2015 or later, if applicable, must notify the employer at least eight weeks before parental leave begins. With regard to protection against dismissal during parental leave, a distinction is also made between births up to 30 weeks before the start of parental leave and births after the start of parental leave. June 2015 and births on or after 1. July 2015 distinguished.

(1)The protection against dismissal during parental leave for births up to 30. June 2015 begins at the time of registration of parental leave with the employer or, at the earliest, eight weeks before it begins. Protection against dismissal exists for the duration of the approved parental leave. Conversely, a notice of termination on the part of the employee pursuant to Section 19 BEEG is permitted with a notice period of three months.

(2)The protection against dismissal during parental leave for births from 1. July 2015 also begins at the time of registration. Anyone wishing to take parental leave between their child’s third birthday and the end of the child’s eighth year enjoys protection against dismissal within this time frame and a maximum of fourteen weeks before the start of parental leave.

4. Is termination permitted after parental leave?

After parental leave, the special protection against dismissal no longer applies. This means that the employer can terminate the employment relationship as soon as the parental leave has ended. Termination is usually an issue if the employee can no longer perform the job held prior to parental leave. An example is the care of the child, which takes more time than planned and can no longer be reconciled with professional activities. If the employer is unable to react flexibly to the changed circumstances and is also unable to offer an equivalent job, this often results in a termination, which can be issued by the employer or the employee themselves. It is also possible to agree a termination agreement between the parties.

Important for employees to know,

that if the employee is dismissed, a blocking period can be imposed by the Employment Agency, which can last up to twelve weeks, during which you, as an employee, will not receive unemployment benefit I. After the blocking period, you will receive 67 percent of the flat-rate net salary. Maternity allowance and parental allowance are not counted as income, so that, for example, if you take parental leave for one year, the salary you received two years before becoming unemployed will be taken into account.

otherwise, if there is an important reason for the employee’s termination and the necessity of the decision is sufficiently well substantiated. Then the blocking period can possibly be prevented. The same applies to the termination agreement, which comes about through the agreement of the contracting parties with the aim of terminating the employment relationship by mutual consent. Often the termination agreement is also linked to the payment of a severance package. If the termination agreement is concluded without the employee being able to give an important reason and to substantiate it accordingly, a blocking period of up to twelve weeks will be imposed on him by the Employment Agency in this case as well.

Both facts concerning the lock-up period make it clear how important legal advice is: you avoid mistakes that can have serious financial consequences.

5. Termination after parental leave – what can you do now?

You have received notice of termination after parental leave and are now wondering what to do next? First of all, it is important that you avoid a blocking period on the part of the employment agency so that you immediately receive unemployment benefit I. Another option is to negotiate a severance package. As an employee, you do not have a legal right to severance pay in the event of termination; instead, negotiating skills are required. Employers are particularly interested in avoiding an action for protection against dismissal, which you as an employee can file with the labor court under certain conditions and use as leverage.

An experienced attorney from our nationwide network can help you negotiate an appropriate settlement. If certain conditions are met, we will apply for legal aid on your behalf. Take the opportunity of a free initial consultation, in which you will be informed about your legal options!

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