What Are the Rules Regarding Protection Against Termination After Parental Leave?
Many employees are deeply concerned about the possibility of being terminated. Under employment law, this is particularly true for employees who have recently had a child and who, in addition to coping with changes in their family life, must also ensure their family’s financial security.
Special protection against termination therefore applies during parental leave. But even after parental leave ends, employees remain protected against arbitrary termination by their employers.
Below, we explain exactly what protection against termination entails after parental leave.
Protection Against Termination During Parental Leave
During parental leave, Section 18(1) of the Federal Parental Allowance and Parental Leave Act (BEEG) provides special protection against termination. This protection takes effect from the date the parental leave was requested and ends when the parental leave ends.
During this period, the employer may terminate employment only in absolutely exceptional cases (e.g., in the event of the permanent closure of the business). Furthermore, the termination is effective only if the highest state authority for occupational safety and health has expressly approved it.
Protection Against Dismissal After Parental Leave
When parental leave ends, the special protection against termination provided by the BEEG also ends. However, parents—like all employees—are still protected under the Protection Against Dismissal Act (KSchG). This applies at least to businesses with more than ten employees. Additionally, the employee must have been employed by the business for more than six months.
Section 1 of the KSchG stipulates that a termination is invalid if there is no valid reason for termination. Valid reasons may include operational, personal, or behavioral grounds.
The employer may terminate employment only if the requirements for the respective reason are met (more on this below).
a. Requirements for Termination for Business Reasons
A prerequisite for termination for business reasons is that urgent operational requirements preclude the continued employment of the employee. This means that the employee’s labor is simply no longer needed.
One reason for this may be a sharp decline in orders. However, purely internal circumstances within the company can also lead to termination for business reasons if, as a result, positions that are no longer needed are eliminated.
A classic example is the restructuring of the company.
However, business needs alone are not sufficient to justify a termination. If several employees are eligible for the position being eliminated, the employer must conduct a flawless social selection process. The employee who is least deserving of social protection must then be terminated. Factors considered in the social selection process include
- length of service,
- age,
- severe disabilities
- and—particularly important—support obligations.
The latter factor thus favors young parents who have just returned from parental leave. Due to the social selection process, it is generally more difficult to terminate their employment than that of employees without children.
Experience shows that employers often make mistakes in the social selection process. Potential errors must be taken into account when reviewing the termination and determining your negotiating position.
Furthermore, a termination for operational reasons will fail if there are comparable vacant positions within the company to which you could be transferred. This also presents opportunities for legal challenge.
b. Requirements for termination for personal reasons
In the case of termination for personal reasons, the grounds for termination lie with the employee themselves. You may be terminated if you are no longer able to perform your job properly.
The most common scenario involves absences due to illness. However, even someone who, for example, loses their driver’s license while working as a professional driver can no longer perform their job and may therefore be terminated for personal reasons.
For a termination for personal reasons to be valid, numerous conditions must be met:
Negative Prognosis
It must be reasonable to assume that you will not be able to perform your job regularly in the future. If, for example, it is foreseeable that you will recover within a short period of time, you cannot be terminated. In that case, the prognosis is in your favor.
As a rough rule of thumb: If you will miss more than 15 to 20% of your annual workdays, a negative prognosis applies. Termination is then often possible. However, these are only guidelines.
Depending on the individual case, a different prognosis may be correct even if the figures are exceeded or not met. In cases of doubt, the courts must decide.
Significant Impairment of Business Interests
The effects of the personal reason must constitute a burden for the employer that is unreasonable. This is not always easy for the employer to prove, especially in cases of absences due to illness.
This is because, after six weeks of continuous illness, the employer is no longer obligated to pay you wages. You therefore no longer incur any costs for the employer.
One possible argument is that the employer needs planning certainty, which is lacking due to the uncertainty surrounding your return.
No other possible role within the company
If, for example, the employer has the option of continuing to employ the driver without a driver’s license in an office position, the termination is invalid. Of course, this would require that the employee has the appropriate qualifications and that there is still an open position in the office.
In this context, a so-called “workplace reintegration program” must usually be carried out before a termination based on illness can take place. During this process, options are discussed for how you can continue to be employed despite your physical impairment.
If no such discussion took place, the termination is often invalid. The same applies, of course, if a more suitable position is available and is not offered to you.
Balancing of Interests
Even if all other requirements are met, the termination is invalid if a balancing of interests favors you. Your interest in retaining your job is weighed against the employer’s interest in uninterrupted business operations.
The outcome of such a balancing of interests is always a matter of the individual case. However, caring for a young child is one of several factors that may work in your favor during this assessment.
c. Requirements for dismissal for cause
In the case of termination for cause, the reason for termination lies in the employee’s conduct that violates their duties. He or she may be terminated if, through his or her misconduct, he or she has violated obligations under the employment contract:
Breach of Duty
A breach of duty can take many different forms. Just a few examples include consistently arriving late, theft in the workplace, insulting coworkers or the boss, drinking alcohol during work hours, and much more.
Warning
However, a breach of duty alone usually does not justify termination. First, you must receive a written warning and be made aware of your misconduct. Only if you subsequently commit similar breaches of duty again is termination justified. In some cases, more than one written warning may be necessary.
But be aware: In cases of particularly serious violations, a written warning is not required. The same applies if you make it clear that you will not change your behavior even if you receive a written warning.
d. General Requirements
In addition, there are further requirements that must be met for all types of termination:
- The termination must be issued in accordance with§ 623 BGBmust be served on you in writing (i.e., including a handwritten signature). A notice of termination sent by email or given verbally is not valid.
- Ordinary termination does not end the employment relationship from one day to the next, but only after the notice period has expired. This period must also be specified in the notice of termination. The notice period is governedby § 622 BGB ,the notice period depends on the length of service: For example, after two years of employment, the period is two months; after 20 years, it is seven months. Collective bargaining agreements and employment contracts may in some cases provide for different notice periods. If there is
- a works council at the company, it must be consulted regarding the termination in accordance with the proper procedures. However, it is not required to give its consent.
e. Special Case: Termination Without Notice
The employer may terminate employment without any notice period only if there is good cause ( § 626 BGB). The requirements for this are stringent. It must be unreasonable for the employer to continue the employment relationship even for one more day.
Criminal offenses in the workplace can constitute such a reason, as can a persistent refusal to work. Even in these cases, a balancing of interests must be conducted.
In this context, the fact that you recently had a child for whom you are responsible carries significant weight. The threshold for termination without notice is therefore higher. However, this is not a criterion that automatically precludes termination.
Request for part-time work after parental leave
Many parents would like to work part-time initially after parental leave. You may even have a legal right to this if the company has more than 15 employees and you have been employed there for more than six months (see § 8 TzBfG).
The request for part-time work must simply be submitted three months before the start of part-time work. Many employers are unhappy with this request. They often threaten termination (for operational reasons). However, as an employee, you are in a strong position.
As a general rule, you cannot be terminated. Seek advice from an employment lawyer.
In some cases, we will recommend that you accept a termination (and subsequently challenge it in court) or sign a termination agreement with a substantial amount of severance pay.
However, if the above-mentioned requirements for the right to work part-time are not met, your position is weaker.
In that case, you are usually dependent on your employer’s consent. Alternatively, you can resign yourself or sign a termination agreement. However, you should already have secured follow-up employment by then.
In addition to the loss of income, you can expect reductions in your unemployment benefits.
What to Do If You Are Terminated
If you have been terminated, you should consult an employment lawyer as soon as possible. We will review your case and discuss the next steps with you.
You have the option to file a wrongful termination lawsuit against your dismissal. The court will then decide whether the termination was lawful or not.
However, this lawsuit must be filed with the court within three weeks of receiving the notice of termination—otherwise, the termination becomes effective. This applies even if the termination was actually unlawful!
Conclusion
Special protection against termination applies during parental leave. This protection ends when parental leave ends. Nevertheless, parents are usually still protected by general employment protection laws.
A termination may not be arbitrary. It must be based on business reasons, personal reasons, or conduct- related reasons. In addition, general formal requirements must be met. Otherwise, the termination is unlawful.
An unlawful termination can be challenged in court through an action for protection against termination. In this case, the short three-week deadline must be observed.
In the event of a termination, it is essential to consult an employment lawyer to receive personalized advice.
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