A termination during parental leave in Germany is generally prohibited. Germany tends to be among the more employee-friendly countries, especially when it comes to firing employees. However, you still can get fired in Germany, and in rare occasions, even during parental leave. Employees on parental leave in Germany do generally enjoy strong protection against unfair dismissal. As a general rule, the law prohibits to give notice of termination during parental leave – but there are exceptions. What are these exemptions, when an employer can terminate the contract? Is it possible for employees to give notice during parental leave? This blog article answers these and other questions.
What special protection applies during parental leave?
Employees who live with a child in a household and look after and raise it themselves have a right for parental leave in Germany. During parental leave, special protection against unfair dismissal applies (Sec 18 BEEG). A termination during parental leave in Germany is generally prohibited. Only in exceptional cases, an employer may give notice of termination during parental leave. Examples include cases when the company shuts down, goes into insolvency proceedings – or if there are serious breaches of duty by the employee. The bar is rather high!
(What) Are the exemptions for termination during parental leave in Germany?
For termination during parental leave, the employer needs the prior consent of the competent state authority and a special reason. Such reasons can be, for example, on the employer side:
- Closure of the company in which the employees on parental leave are employed
- Relocation of the company in which the employees on parental leave are employed
- Endangering of the existence of the company or the economic existence of the employer as well as insolvency of the employer
There are also exceptional reasons on the employee side: For example, in the case of serious breaches of duty or serious breaches of contract by the employee towards the employer, e.g. criminal acts, termination could be legal even during parental leave in Germany.
If an employee receives a notice of termination during parental leave, you should consult an expert on labor law immediately. He or she will then inquire with the responsible authorities whether the competent authority has approved an exceptional dismissal. If not, the termination is almost certainly invalid. In the case of an approved exceptional termination, your labor law expert can appeal against the official approval.
How long does the protection against dismissal apply during parental leave?
The protection against dismissal beings 8 /14 weeks prior to the beginning of the parental leave. It ends when the parental leave expires (BEEG). The leave expires at the latest when the child reaches the age of three. Protection against dismissal ends one day before the child’s third birthday. However, even afterwards, the notice period is at least three months (BEEG).
The special protection against dismissal applies to the parent who is currently on parental leave, even if both take turns on parental leave. If both parents are on parental leave at the same time for a certain period of time, the special protection against dismissal applies to both equally during this time. The special protection against dismissal does not apply during the working time between two periods of parental leave.
Termination of parental leave by employees
During parental leave, employees enjoy protection against dismissals by their employer. On the other hand, nothing stands in the way of termination by the employee him/herself, even during parental leave. The employee can resign at any time at the end of parental leave. The only requirement is that the termination of the employment relationship must be in writing. If you would like to give notice as an employee and leave the company earlier than the deadline, i.e. before the end of parental leave (e.g. because you already have a new job), this may only be possible with a mutual termination agreement between you and your employer. If, as an employee, you give notice of your own accord without already having a new job, you have no right to unemployment benefits within a blocking period of three months.
What can you do if you get a notice letter during parental leave?
The bar for a vald and legal termination during parental leave is rather high. If you receive notice of termination from your employer during parental leave, you can defend yourself with an action for protection against unfair dismissal. Important: The period for filing a complaint with the responsible labor court is only 3 weeks. If you miss this deadline, the termination will effective, even if there were no valid reasons for such a termination! Even if your employer has the approval of the competent authority for an exceptional dismissal, you still have to file an action for protection against dismissal. As in all dismissal protection proceedings, the court then examines whether the reasons for dismissal given by the employer are actually valid.
If the employee is not interested in continued employment, the fact that the termination was not valid will lead to a higher severance payment. We, therefore, recommend seeking advice from a lawyer. After all, it’s about your job (or a lot of money)! You can carry out a rough check of the range of a severance payment here: