Termination after parental leave: is it legal??

Termination after parental leave

Within parental leave, termination by your employer is only possible in exceptional cases.

If your employer gives you notice of termination after parental leave, the regular law on protection against dismissal applies.

If your employer uses unfair means to terminate your employment, you can take legal action to protect against dismissal.

Parental leave is intended to help parents after the birth of their child to be able to take full care of their child and not have to worry about their job. Protection against termination during parental leave is comparatively comprehensive, so the employment contract can only be terminated under strict conditions. Sooner or later, however, the time is approaching when the previous employment relationship is to be resumed. Under certain circumstances, however, this is precisely when termination occurs after parental leave.

1. Termination after parental leave – a return is sometimes difficult

Father with young daughter at hand faces a decision

Work and family are not always easy to reconcile.

Many employers are increasingly accommodating with regard to parental leave regulations and even offer their employees the opportunity to work part-time afterwards. Unfortunately, this is not a matter of course and there are employers who will do everything in their power to get rid of you as quickly as possible after parental leave.

In general, you have a right to return to work after parental leave. However, this does not mean that you will actually end up at the same desk within the company.

As a rule, the employment contract is structured in such a way that the range of duties is relatively broad. After your parental leave has expired, you can therefore be employed in all those areas that your employment contract provides for.
The only thing you do not have to worry about is financially, as you may not be placed in a worse position under any circumstances. This means that you are entitled to your salary even if you are actually doing a less demanding job than before.

2. Special protection against dismissal only applies during parental leave

If you wish to apply for parental leave, you must observe a period of seven weeks. To benefit from the special protection against dismissal during parental leave, you should submit your application, at least as a man, but not significantly earlier.

In the last 8 weeks before parental leave, you do not have to fear any dismissal by your employer, as the protection already takes effect. Expectant mothers are additionally protected by the Maternity Protection Act. The regulations for protection against dismissal can be found in § 18 BEEG (Federal Parental Allowance and Parental Leave Act).

Tip: During parental leave, you are protected against ordinary and extraordinary dismissal. The same also applies to a dismissal with notice of a change of employment.

3. The problem of the changed situation

Blocking period for ALG-I receipt:

If there is a termination agreement and you receive severance pay or you terminate your employment relationship yourself, the employment office can impose a block on the payment of unemployment benefits. The blocking period is a maximum of 12 weeks.

All parents who go on parental leave and then return to a company now have to take care of a child. In most cases, employees therefore want flexible working hours and a lower number of hours.

However From a legal point of view, only the obligation that you can continue to do your previous job. If, for example, you have worked 40 hours a week in shifts, your employer does not have to offer you another possibility of employment.

If this is not compatible with your new circumstances, you will often be dismissed because of poor working hours. Please note, however, that there is a risk of a blocking period on the part of the employment office if you give notice yourself. This can only be prevented if you can provide important reasons for the dismissal. At this point the advice of a lawyer is useful.

4. How to proceed against a dismissal after parental leave

Client interview

Do not hesitate to seek legal assistance.

In some cases, termination after parental leave is legal. In other cases, employers try to force an employee out of the employment contract by unfair means.

It is not uncommon in this case for the employer to violate the terms of the employment contract. After returning to work, employees are not given a job of equal value, but are assigned to a different plant or have to perform menial tasks.

In many cases, employers use their position of power to get the respective employee to resign themselves. This is the easier way for the employer to get rid of unpleasant or unfair employees. To quickly get rid of employees who are no longer needed. In such a case, it is worthwhile to consult a lawyer for employment law in order to discuss the further procedure. At this point, the details of your employment contract are decisive.

If an employer even terminates an employee’s employment after parental leave, without there being any particular reason for doing so, it is often worthwhile to take legal action Proceeding by means of an action for protection against dismissal.

Tip: Many employers shy away from litigation before the labor court, as this is always associated with a period of legal uncertainty. Employees can use this to their advantage to z.B. negotiate a severance package and look for a new job at the same time.

5. Important questions and answers

What happens to the remaining leave in the event of termination after parental leave??

No additional vacation entitlements arise during parental leave. However, leave not taken by the start of parental leave does not expire and can be taken after resuming work.

Do not sign important documents prematurely.

However, if notice of termination is given, so that a return to work is excluded, your employer must compensate the outstanding vacation entitlement accordingly.

How long is my notice period if I want to hand in my notice even after parental leave??

You have a special termination option at the end of parental leave. However, even in this case you must observe a notice period of 3 months.

What happens to a fixed-term employment contract during parental leave?

In principle, the contract is suspended during parental leave. However, this only applies in the case of a permanent contract.

If the agreed contract period ends during the parental leave, your employment relationship expires. In this case, no separate notice of termination is required. So remember to look for a new job in good time resp. register with the Federal Employment Agency as unemployed.

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