A termination agreement during parental leave can be useful under employment law if employers and employees wish to terminate the employment relationship by mutual agreement. However, in most cases, employees do not need to fear termination during parental leave, as special protection against termination applies during this period.
What happens if you resign while on parental leave?
Employees who wish to terminate their employment may do so during parental leave, provided they comply with the applicable notice periods. Special notice periods apply only at the end of parental leave.
Special Protection Against Termination for Employees During Parental Leave
It is very difficult for employers to terminate the employment of their employees during parental leave. During parental leave, employees enjoy special protection against termination, which differs from general protection against termination. The employer must first obtain approval to issue the notice of termination.
However: Termination by the employer is not entirely impossible. If certain circumstances exist, the employer may apply to the highest state authority for occupational safety and health—or to an agency designated by that authority—for approval to terminate the employment. In Berlin, the State Office for Occupational Safety and Health, Health Protection, and Technical Safety—LaGetSi for short— is responsible for this. However, the employee is given the opportunity to be heard regarding the circumstances of the termination before the highest state authority makes a decision.
Such circumstances may exist if the business is shut down or relocated, or if the employee’s continued employment is precluded by certain particularly serious misconduct on their part. Otherwise, the state authority will generally not approve a termination.
Legal Representation Already During the Hearing Process
If the employer has applied for approval of a termination, employees should seek legal advice and representation from certified specialist lawyers in employment law as early as the hearing process. Please contact us in such a case.
If the employee’s position must be eliminated for operational reasons, a termination agreement can be negotiated instead of a termination. The termination agreement offers the employer the advantage that no statutory, collective bargaining agreement, or employment contract notice periods need to be observed. Thus, the employment relationship can be terminated immediately or in the near future through the termination agreement.
However, the termination agreement does not necessarily shorten the notice period for the employee. Instead, the notice period can be maintained, and the employee can be placed on leave for that duration. If the employee no longer has work to perform, they can use the time off to look for a new job.
In most cases, the employer will offer a termination agreement when they wish to end the employment relationship with the employee by mutual consent. On the other hand, a termination agreement may also be offered if the employer believes that a termination for operational reasons might not hold up in labor court.
Employees can file a lawsuit for protection against dismissal within the 3-week period following notice of termination. Once a termination agreement has been signed, it is very difficult to challenge it in court. For this reason, termination agreements are generally the safer option for the employer. Employees should therefore carefully consider whether they should sign the termination agreement. If in doubt, it is helpful to seek advice from a knowledgeable and competent certified specialist lawyer in employment law.
Can I resign before the end of parental leave?
If employees wish to resign at the end of their parental leave, this is not automatically possible. At the end of parental leave, employees must observe a 3-month notice period. This is regulated in Section 19 of the Federal Parental Allowance and Parental Leave Act (BEEG).
In the interest of proper planning of staffing needs, the employer should have these 3 months to find a replacement for the departing employee or to restructure the position otherwise.
For more information and regulations regarding parental leave, please read this article.
Can a termination agreement be entered into during parental leave?
A termination agreement allows employers and employees to mutually agree on how to end the employment relationship. Either party may express a desire or proposal for such a termination agreement. While a successfully concluded termination agreement ends the employment relationship in the same way as a notice of termination, a termination agreement allows both parties to mutually determine the terms.
If, as an employee, you do not wish to terminate the employment relationship, then there will be no termination agreement. As noted above, in most cases, the employer is not permitted to terminate the employment relationship during parental leave. If you nevertheless receive a notice of termination and wish to contest it, you must file a lawsuit for protection against wrongful termination within 3 weeks.
Termination Agreement Possible During Parental Leave
In principle, it is always possible to enter into a termination agreement—even during parental leave. We would like to clearly point out here that employees forfeit their special protection against termination by entering into a termination agreement. You should always keep this in mind when entering into a termination agreement.
In a termination agreement, both parties can agree on the effective date of termination. In doing so, the employee and employer are not required to adhere to the statutory notice periods. Additionally, a termination agreement may include provisions regarding compensation for accrued but unused vacation time or overtime hours, as well as an amount of severance pay.
Severance Pay in a Mutual Termination Agreement: Negotiation Skills Are Key
There is no legal obligation to pay an amount of severance pay. If employees wish to receive an amount of severance pay through a termination agreement, this must be agreed upon between the parties. Whether the employer is willing to pay an amount of severance pay usually depends on whether the employer is interested in terminating the employment.
For example, if the employer proposed the termination agreement, they will be more willing to negotiate an amount of severance pay. If the initiative for the termination agreement comes from the employee and the employer has an interest in the employee returning to their “old” job after parental leave, negotiating an amount of severance pay may prove difficult.
Therefore, when it comes to severance pay, it clearly depends on the employee’s negotiating skills and arguments.
When should you enter into a termination agreement?
If employees decide during parental leave to terminate their current employment relationship, a termination agreement provides a quick way to leave the job. However, this requires the employer’s willingness to agree to the termination agreement and the termination of the employment relationship.
The advantage is that a termination agreement quickly ends the employment relationship, and you are not required to observe statutory notice periods or return to the company.
If you miss the statutory 3-month notice period at the end of parental leave, you would have to return to the company and your job and then resign while complying with the statutory notice period.
To avoid this, a termination agreement between the employer and the employee could be helpful. However, risks related to the waiting period must also be considered and avoided.
Termination Agreement During Parental Leave: Legal Advice for Employees
If the employer proposes a termination agreement, however, employees should always remember that they are not required to agree to it. During parental leave, the employer is generally not permitted to terminate the employment relationship. Therefore, if employees agree to the termination agreement, they forfeit the special protection against termination that applies during parental leave.
Employees should therefore always think very carefully and, if in doubt, seek legal advice from certified specialist lawyers in employment law when a termination agreement is offered. Consent can have negative consequences for employees.
You can read general information on termination agreements in this article.
How does an amount of severance pay affect parental leave benefits?
If an employee and employer have agreed on an amount of severance pay in a termination agreement, this does not affect parental allowance. The eligibility requirements for receiving parental allowance include that the employee either does not work at all or works fewer than 32 hours per week.
The calculation of parental allowance takes into account the income from the last 12 months prior to the child’s birth. An amount of severance pay is not included in this calculation.
When is there no waiting period for a termination agreement?
In the case of termination agreements followed by the receipt of unemployment benefits, it is generally important to consider the issue of the waiting period. In most cases, the relevant employment agencies impose waiting periods of 12 weeks. During this time, the entitlement to Unemployment Benefit I is suspended and no payments are made. You will not receive any unemployment benefits for these 12 weeks.
However, waiting periods do not apply if there is good cause for terminating the employment relationship. Mothers, however, usually do not need to worry about this waiting period if they comply with the notice periods specified in the termination agreement. For them, the protected duty of care for their child and family precludes the continuation of full-time employment.
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