Termination during parental leave in Germany: Is this legally permissible?

Those on parental leave enjoy special protection against dismissal. Employers may only terminate employment in ‘special cases’ and with official approval. In this article, you will learn how this protection against dismissal is specifically structured, when a ‘special case’ entitles the employer to terminate employment, whether employees may resign during parental leave, and many other topics related to termination during parental leave.

The most important facts at a glance:

• The employer may not terminate the employment relationship during parental leave. Protection against dismissal begins when parental leave is requested, but no earlier than eight weeks before the start of parental leave. Protection against dismissal ends at the end of parental leave.
• Only in special cases may the competent authority declare the termination to be permissible.
• Employees may generally terminate their employment during parental leave in accordance with the agreed notice period. If the employee terminates their employment at the end of parental leave,a statutory notice period of three months applies.

Prohibition of termination during parental leave

Employees on parental leave are subject to special protection against dismissal in the form of a prohibition of termination. During parental leave, the employer may not terminate the employment relationship. The protection against dismissal begins with the written request for parental leave, but no earlier than eight weeks before the start of parental leave and lasts until the child reaches the age of three. If parental leave is taken after the child’s third birthday, the protection against dismissal begins on the date of the request or, at the earliest, 14 weeks before the start of parental leave between the child’s third birthday and the child’s eighth birthday.

Exception: Termination in special cases with official approval

The employer may only terminate the employment relationship in ‘special cases’ after the competent authority has declared the termination to be permissible.¹ A ‘special case’ only exists if there are exceptional circumstances that outweigh the overriding interests of the parent concerned. The federal government has issued a general administrative regulation on this matter.² According to this, a special case exists if, among other things:

• the business is shut down or relocated (in whole or in part) and there is no possibility of continued employment in another part of the company, at the new location or in another department.
• The employee refuses a reasonable offer to continue working in another position after the business is closed or relocated.
• Maintaining the employment relationship after the end of parental leave jeopardises the existence of the business or the employer.
• In cases of behaviour-related dismissals, the employee has seriously breached their contractual obligations. This may include intentional criminal acts that make it unreasonable for the employer to continue the employment relationship.
• In small businesses under the KSchG (ten or fewer employees): The employer is urgently dependent on a suitably qualified replacement in order to continue operations, whom they can only hire if they conclude an open-ended employment contract with them.
• The employer cannot find a suitably qualified replacement for a fixed-term position to maintain the employment relationship. As a result, several jobs would have to be cut.

Competent authorities in the event of termination during parental leave

The competent authorities under Section 18 BEEG vary from state to state:

• Baden-Württemberg: Municipal Association for Youth and Social Affairs
• Bavaria, Bremen, Lower Saxony, Saxony-Anhalt: Trade Supervisory Office
• Berlin: State Office for Occupational Safety, Health Protection and Technical Safety
• Brandenburg, Thuringia: State Office for Occupational Safety
• Hamburg: Authority for Justice and Consumer Protection (Occupational Safety)
• Hesse: Regional councils
• Mecklenburg-Western Pomerania: State Office for Health and Social Affairs
• North Rhine-Westphalia: District governments
• Rhineland-Palatinate: Trade supervision Structural and approval directorates South or North,
• Saarland: Ministry for the Environment and Occupational Safety,
• Saxony: State Directorate (Occupational Safety Department)
• Schleswig-Holstein: Occupational Safety Authority at the North Accident Insurance Fund
• Thuringia: State Office for Consumer Protection

To learn more about the procedures for obtaining official approval of the dismissal, affected employees can turn to the relevant authorities. The website of the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth lists comprehensive contact details.

How long does protection against dismissal apply during parental leave?

• The special protection against dismissal ends when parental leave expires.
• If parental leave is taken for the first three years of the child’s life, protection against dismissal ends at the end of the day before the child’s third birthday.
• If parental leave is taken between the end of the third and eighth year of the child’s life, the prohibition of dismissal also extends to the additional period.

Special protection against dismissal applies to the parent who has duly applied for parental leave or has commenced parental leave. This also applies if both parents take parental leave alternately. If both parents are on parental leave at the same time for certain periods, the special protection against dismissal applies equally to both parents during this period. Protection against dismissal does not apply during the working time between two periods of parental leave.

Termination during parental leave by employees

Employees enjoy protection against dismissal by their employer during parental leave. However, there is nothing to prevent an employee from resigning during parental leave.

• Employees can generally resign at any time during parental leave without giving reasons. The contractually agreed or statutory notice period must be observed.
• An exception applies if the termination is announced at the end of parental leave. In this case, the employee must observe a statutory notice period of three months. This is to give the employer the opportunity to find a suitable replacement in good time and to make adjustments within the company.
• Termination of the employment relationship must be in writing.

If the employee terminates the employment relationship without already having a new job, the employee must expect a waiting period of up to 12 weeks. This means a later and reduced payment of unemployment benefits. This should be clarified with a lawyer or the Federal Employment Agency before termination.

How can you defend yourself against dismissal during parental leave?

If the employee receives notice of dismissal during parental leave (with or without a declaration of admissibility from the authorities), an action for unfair dismissal can be brought.

Important: The period for bringing an action before the labour court is only 3 weeks. If you miss this deadline, the dismissal is effective. Even if the employer has received the declaration of admissibility from the authorities, an action for unfair dismissal can be brought, as all other grounds for the validity of the dismissal can be examined by the court. If the employee is then not interested in continuing employment, the invalidity of the dismissal will in any case affect the amount of severance pay. It is advisable to seek advice from a solicitor. In addition to bringing an action for unfair dismissal, the employee can appeal against an existing declaration of admissibility issued by the authority. Here too, the employee should first consult a solicitor specialising in employment law.

Frequently asked questions (FAQ)