In Germany, it is usually against the law to dismiss an employee during parental leave. The country is moving towards a more employee-centred approach, particularly with regard to dismissal. However, cases of dismissal, although rare, can still occur during parental leave. German law usually provides employees on parental leave with strong protection against unfair dismissal. In general, it is not legal to serve a notice of termination while an employee is on parental leave – although there are exceptions. So what are these exceptions that allow an employer to terminate a contract? Can an employee resign while on parental leave?
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What specific protections are in place during parental leave?
In Germany, employees who live at home with a child and are personally responsible for the child’s care and upbringing are entitled to parental leave. This period is subject to special protection against unfair dismissal under Section 18 of the Bundeselterngeld- und Elternzeitgesetz (BEEG). As a rule, employers may not terminate an employee’s employment during parental leave. However, some exceptional circumstances may allow an employer to give notice during this period. Such circumstances may include the closure of the company, the opening of insolvency proceedings or serious breaches of duty by the employee. Note, however, that these situations set a high standard!
Exceptions to termination during parental leave
In order for an employer to validly terminate an employee’s employment during parental leave, the employer must first obtain permission from the relevant state authority and have a valid reason. On the employer’s side, reasons may include
- Closure of the business in which the employee on parental leave works
- Relocation of the organisation where the employee on parental leave works
- The existence or financial survival of the employer is at risk, including the employer’s insolvency.
On the employee’s side, there may also be exceptional reasons, such as serious breaches of duty or serious breaches of contract towards the employer – for example, criminal behaviour. In such scenarios, dismissal during parental leave may be legal in Germany.
If an employee receives a notice of termination while on parental leave, it is advisable to consult an employment law expert immediately. The expert can then check with the relevant authorities whether a special dismissal has been sanctioned. Without such approval, the dismissal is likely to be invalid. In the event of a sanctioned special dismissal, your labour law expert can challenge the official approval.
For an employer to validly terminate an employee during parental leave, they must first obtain approval
How long is protection from termination of employment during parental leave?
The protection against dismissal starts 8/14 weeks before the start of the parental leave and ends at the end of the leave (as stated in the BEEG). This leave lasts until the child is three years old at the latest, with the protection against dismissal ending one day before the child’s third birthday. However, the period of notice is still at least three months (BEEG).
The special protection against dismissal applies to the parent who is currently on parental leave, even if the parents alternate their leave periods. If both parents go on parental leave at the same time for a certain period, this special protection against dismissal applies equally to both during this period. This special protection against dismissal does not apply to periods of work between two periods of parental leave.
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Termination of parental leave by employees
During parental leave, employees are protected from dismissal by the employer. Conversely, there is no prohibition on the employee terminating his or her own employment during this period. An employee can resign at the end of parental leave without any restrictions. The only requirement is that the contract be terminated in writing. If, as an employee, you wish to resign and leave the company earlier than originally planned, for example before the end of your parental leave (perhaps because you have secured a new job), this may only be possible by mutual agreement with your employer. If you voluntarily resign as an employee without having found a new job, you will lose your right to unemployment benefit for a three-month waiting period.
What are your options if you are terminated during parental leave?
The threshold for a lawful termination during parental leave is very high. If your employer gives you notice while you are on parental leave, you can challenge it by filing an unfair dismissal claim. Note: the time limit for filing a complaint with the relevant labour court is only three weeks. If you miss this deadline, the dismissal will become effective, regardless of the reason! If your employer has a special dismissal permit from the relevant authority, you must still file an unfair dismissal claim. As with all unfair dismissal proceedings, the court will examine whether the reasons for the termination given by the employer are in fact legitimate.
If the employee is indifferent to continuing his or her employment, an unfair dismissal may result in a higher compensation payment. We therefore recommend that you seek legal advice. After all, your job (or a considerable sum of money) is at stake! You can do a preliminary calculation of your possible severance pay range here.
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