Separate Parental Leave Periods Trigger Separate Dismissal Protection

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

Employers must observe the special protection against dismissal under Section 18 of the Federal Act on Maternity Allowance and Parental Leave (Bundeselterngeld- und Elternzeitgesetz – “BEEG”) before each individual period of parental leave. This applies even if employees have already announced multiple periods of parental leave in a single application.

The Federal Act on Maternity Allowance and Parental Leave (Bundeselterngeld- und Elternzeitgesetz – “BEEG”) grants employees special protection against dismissal in connection with taking parental leave. This protection begins even before the parental leave actually starts and is intended to ensure that employees can take their parental leave without the risk of being dismissed immediately before the leave begins. A practical question arises where parental leave is divided into several separate periods.

The Federal Labour Court has now clarified that the statutory protection must be assessed separately for each individual period of parental leave. This also applies even if all periods of parental leave have already been claimed by means of a single application submitted to the employer.

Background

The Court’s decision was based on a claim brought by an employee who had split his parental leave into several periods and had applied for them in a single letter at an early stage. The employer later terminated the employment contract, taking the view that the special protection against dismissal had only existed before the first period of parental leave.

The Federal Labour Court did not share this view. According to the Court, the law links the special protection against dismissal to the relevant period of parental leave. As the law explicitly allows parental leave to be spread over several periods, the protective effect against dismissal must also apply anew before each of these periods.

Key Issues

The decision is firmly rooted in the protective purpose of the law. The aim of the special protection against dismissal is to ensure that employees are not exposed to an increased risk of dismissal as a result of the statutory notice periods they must observe when requesting parental leave. Without the protection against dismissal that takes effect in advance, an employer could terminate the employment relationship precisely during the period between two periods of parental leave, when the employee has already given notice of their parental leave, but the actual period of parental leave has not yet begun. The legislature deliberately closed this protection gap by ensuring that protection against dismissal takes effect even before parental leave begins. The protective effect therefore arises anew before each individual period of parental leave, regardless of whether the respective periods were claimed individually by separate requests or in advance by means of a single application. This means that dismissals may be deemed invalid even if the employee is between two periods of parental leave, due to the specific timeframes stipulated in the law for the special protection against dismissal.

For employers, this ruling means that each individual period of parental leave must be assessed separately to determine whether the advance protection against dismissal already applies. If applications are made in advance for several periods of parental leave, this therefore results in several separate periods of protection, which may need to be taken into account when implementing staffing measures.

 

Practical Point 

• The special protection against dismissal under Section 18 of the BEEG recommences at the start of each individual period of parental leave, provided that the statutory conditions are met.
• This also applies where several periods of parental leave have been claimed in a single application.
• When planning to terminate an employee’s contract, employers should check all periods of parental leave that have already been applied for, in order to take account of any existing protection periods.
• Companies should ensure that future periods of parental leave that have already been announced are identified and considered at an early stage when making dismissal decisions.