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Dismissed after parental leave: is the boss even allowed to do that?


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Half-legal knowledge can cost a lot of trouble, time and money. Would you prefer to spare your nerves and your wallet? Then our column “Know your rights” is just right for you. Here, the two lawyers Pascal Croset and Inno Merkel from the Berlin law firm Croset answer a question about labor law every two weeks.

A reader wanted to know via Instagram: Can the employer dismiss me immediately after parental leave?

Many companies pride themselves on being particularly family-friendly. However, the reality is often different. It happens again and again that employees after parental leave welcomes the letter of resignation instead of familiarization. In practice, this now happens so often that some labor law experts already speak of the “predetermined breaking point of parental leave”. This phenomenon is unfortunate but real. Now many are asking themselves the legitimate question whether this is even legal. Theoretically yes. However, only under certain conditions.

Who can take parental leave and how long can it be?

But first on parental leave. All employers can take this if they are expecting a child – whether full-time or part-time, fixed-term or permanent, or in training. Put simply, the employment relationship is suspended for this time and the employee does not have to come to work. Instead of the wages, there is parental allowance from the state – 65 percent of the previous net salary. An employee can take parental leave for a maximum of three years per child. Whether father and mother split this time or just one of them takes it is up to them.

During parental leave, employees are particularly protected against dismissal. No matter how serious the employer’s reasons or even allegations are: He may only issue a notice of termination if he has received a so-called declaration of admissibility from the highest state authority responsible for occupational safety. In Berlin, for example, this is the State Office for Occupational Safety, Health and Technical Safety. Experience has shown that consent is very rarely given – for example in the case of exceptionally serious breaches of duty like a theft or a serious insult. Company closures are an exception. Here, consent is usually given.

Do I still have protection against dismissal when I return from parental leave?

As soon as parental leave is over, this special protection expires. Employers are now often subject to the fallacy that dismissal is now possible – because protection against dismissal due to parental leave has “finally” ended. What then usually takes effect is the general protection against dismissal. It applies to every employee who has been employed for more than six months (including parental leave) in a company with more than ten employees.

The general protection against dismissal restricts the freedom of termination otherwise given in contracts in favor of employees. An employee may only be terminated under certain circumstances. This also applies if an employee returns from parental leave. According to this law, only behavior-related, operational, personal or illness-related dismissals are possible.

A behavior-related dismissal is usually ruled out, since the employees do not normally commit any breaches of duty during parental leave – they do not work during this time. The same applies to a termination due to illness.

If the companies want to terminate the employee in accordance with the law, they would only be able to opt for operational or personal termination. Here too, proof is likely to be difficult. Because an operational dismissal presupposes that a job has specifically disappeared. Special rules then also apply here, above all the so-called “social selection”. According to social criteria such as age, length of employment, maintenance obligations or severe disabilities, it is determined which employees may and may not be dismissed for operational reasons.

The personal termination, on the other hand, relates to the personal circumstances of an employee. In this way, employees can be terminated if, for example, they lose their driver’s license but work as a truck driver. As a rule, employees are therefore still well protected after parental leave. Nevertheless, it happens again and again that they are terminated.

Employees are therefore well advised not to simply accept a notice given immediately following parental leave. The employer may have subjective reasons for terminating the employment relationship – but not sufficient ones within the meaning of the law. If the employee has an experienced lawyer specializing in labor law file an action for protection against dismissal, in the vast majority of cases he can either save his employment relationship or at least obtain a very good severance payment.

Will I definitely get my old job back when I come out of parental leave?

After parental leave, the employee must be employed in accordance with the contract. This means that the employer has to offer him an equivalent position, but not the same. The employee can therefore be transferred quite normally after his parental leave if his employment contract provides for it – and these usually contain such a clause.

Anyone who is hired as an employee in the sales department and has previously done internal sales can also be transferred to field sales after returning from parental leave. But: The remuneration cannot be changed as a result.

What the employee does not have to put up with, however, is that the employer places him in a completely unsuitable or hierarchically lower position.

Raising my child takes time. Am I entitled to a part-time job after parental leave?

After the end of parental leave, employees are entitled to a reduction in their working hours. However, this only applies in companies with more than 15 employees. The employer can object that there are operational reasons to the contrary, but has high demands on the presentation of these reasons.

What happens if you cannot work after parental leave because there is no day care center in sight?

At the end of parental leave, the employee must return to work. If he is actually unable to do this, he is of course violating his employment contract. Employees should first and foremost seek a discussion with their employer and clarify whether an extension of parental leave is an option. If at least part-time work is possible, employees can apply for it.

If I, as an employee, quit after parental leave, am I entitled to unemployment benefit?

Here, too, the general rules apply to employees after parental leave. If an employee terminates his / her employment at the end of parental leave or after the end of parental leave, the employment agency will usually impose a blocking period of 12 weeks for receiving unemployment benefits.

Something different only applies if the employee can show a special reason. This can be a doctor’s recommendation, for example. Employees should, however, think twice about whether they want to quarrel with the employment agency immediately after parental leave.

Does the conclusion of a termination agreement make sense during parental leave?

Of course, employees can also conclude a termination agreement during parental leave. In view of the special protection against dismissal during parental leave, employers are sometimes willing to pay higher severance payments. Special protection against dismissal costs extra. However, employees must bear in mind that such a termination agreement usually leads to a blocking period for the employment agency with regard to unemployment benefits.

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