24.11.2020
Since this is probably an exceptional case in company practice, the question arises from time to time whether it is possible to terminate an employment relationship during an employee's parental leave. The answer is, as it so often is: it depends! We would like to give a brief overview here, which is by no means meant to be exhaustive:
Employees on parental leave in accordance with the legal requirements are subject to special protection against dismissal in accordance with Section 18 of the Federal Parental Allowance and Parental Leave Act (Gesetz zum Elterngeld und zur Elternzeit, BEEG). According to this provision, the employer is not permitted to terminate the employment relationship with the employee from the time when parental leave was requested. However, the following conditions apply. The special protection against dismissal begins at the earliest eight weeks before the start of parental leave until the child reaches the age of three or at the earliest 14 weeks before the start of parental leave between the child's third birthday and the child's eighth birthday. The prohibition of termination includes both dismissals and notice of dismissal pending a change of contract and does not differentiate between the date of termination (termination without notice or ordinary termination) or the reason for termination (dismissal for conduct, personal or operational reasons). Part-time employment relationships are also covered by the special protection against dismissal unless they are with another employer within the meaning of Section 15 (4) BEEG. In this respect, the provisions of Section 18 (2) BEEG must be observed. The special protection against dismissal ends at the end of parental leave.
In special cases, the termination of parental leave may be declared permissible by the highest federal state (Land) authority responsible for occupational health and safety or a body designated by that authority before notice of termination is given (Section 18 (1) sentences 4 and 5 BEEG). In terms of legal doctrine, the provision in Section 18 BEEG is therefore a prohibition of termination subject to permission. In the General Administrative Regulation on Protection against Dismissal during Parental Leave (Allgemeinen Verwaltungsvorschrift zum Kündigungsschutz bei Elternzeit) issued by the Federal Government for this purpose, the Federal Government has defined these standard cases, which are intended to make it appear justified that the employee's interest in the continuation of the employment relationship, which is generally regarded as having priority by law, takes second place to the employer's interest in terminating the employment relationship due to exceptional circumstances. Examples of such cases are the closure / relocation of a business (department) in the absence of the option of continued employment in another business or another department, the threat to the existence of the business or employer in the event of the continuation of the employment relationship or particularly serious breaches of the employee's contractual obligations / intentional criminal acts by the employee which make the continuation of the employment relationship unreasonable. The requirements for reasons for termination are therefore comparatively high and are likely to regularly exceed the requirements for a compelling reason within the meaning of Section 626 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). The approval procedure pursuant to Section 18 BEEG must be carried out in addition to any other necessary approval procedures (e.g. for severely disabled employees or elected officials). Any termination declared without prior approval shall be null and void.
In contrast to the employer, an employee may also terminate his or her employment relationship during parental leave in principle and without observing any further requirements. In this respect, the general labour law regulations apply, in particular, regarding the notice period to be observed. However, the special right of termination provided for in Section 19 BEEG constitutes an exception to this principle. According to this provision, an employee on parental leave can only terminate the employment relationship at the end of parental leave by giving three months' notice.
It should be noted that the provision in Section 19 BEEG only applies if the employment relationship is to be terminated at the same time as parental leave ends. In this respect, Section 19 BEEG constitutes mandatory statutory law which is not at the disposal of the parties to the employment contract or collective bargaining agreement. In contrast to other termination dates, the employee cannot invoke any different contractual or statutory notice periods in this case. Whether and to what extent an employer wishes to maintain an employment relationship that the employee on parental leave wishes to terminate with too short a notice period is of course a different question and depends on the individual case.
The termination of an employment relationship is also possible in principle during parental leave but is sometimes associated with considerable additional requirements. This must be taken into account at an early stage by both employer and employee when they are planning to end the employment relationship. Irrespective of this, the parties to the employment contract may of course also enter into a termination agreement, which is not usually linked to further conditions, but the content of which can also be influenced to a considerable extent by Sections 18 and 19 BEEG.
Thorsten Tilch
Senior Associate
Leipzig
thorsten.tilch@luther-lawfirm.com
+49 341 5299 0
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