Germany: Valid dismissal of an employee during her parental leave

Authors: Verena Braeckeler-Kogel, MAES (Basel) and Meike Christine Rehner

The role of an employee on parental leave was eliminated due to a restructuring of the employer. As a consequence, the employer served notice of dismissal combined with the offer of altered conditions of employment. The employee declined this offer and challenged the dismissal in court.

In principle dismissals are prohibited during periods of parental leave. Only in exceptional cases dismissals can be implemented with the prior approval of the relevant authority.  Typically, one will assume that such an exception applies in conduct-related cases.

The Regional Labour Court however now held that if continued employment in the previous role is no longer possible due to elimination of such role, an approval to dismiss may also be granted in cases of redundancy. If such approval was validly granted and the reasons for redundancy are also considered as valid by the labour court, the dismissal of an employee on parental leave can be valid.

Key Action Points for Human Resources and In-house Counsel

Where employees enjoy special protection against dismissal e.g., during parental leave, pregnancy or due to severe disability, under special circumstances and with prior permission of the relevant authority a dismissal can be possible by way of exception.

It should be noted that the threshold for an approval tends to be high. During parental leave an approval may be granted for example in these exceptional circumstances:

• the business in which the employee is employed is closed down and the employee cannot continue to be employed in another business of the company
• the department in which the employee is employed is closed down and the employee cannot continue to work in another department of the business or in another business of the company,
• the business or department in which the employee is employed is relocated and the employee cannot continue to be employed in the new location of the business or department, nor in another department or business of the company,
• the continuation of the employment relationship after the end of parental leave endangers the economic existence of the employer, or
• particularly serious breaches by the employee of his or her contractual duties or wilful criminal acts by the employee make it unreasonable for the employer to continue the employment relationship.