Termination letter during parental leave
June 16, 2009 | 20,00 EUR | answered by Dr. Lars Nozar
Dear Sir or Madam,
currently in the company where I am employed, terminations and change notices are being issued. I have been verbally informed that I can expect a change notice, in which the removal of leadership responsibilities will be documented (team leader > clerk). Regardless of this situation, I have been considering taking parental leave for a year to spend more time with my children. From this, the following questions arise:
- Can an employer formally issue a change notice to an employee while they are on parental leave?
- At what point does any potential job protection come into effect?
- By applying for parental leave before receiving the formal change notice, can I prevent it from taking effect for the duration of the parental leave?
Thank you for your response.
Hello, concerning the issue:
See §§ 18, 19 BEEG (Special protection against dismissal according to the Federal Parental Allowance and Parental Leave Act).
The special protection against dismissal according to the BEEG applies in addition to the general protection against dismissal according to the Protection Against Dismissal Act (KSchG). The KSchG applies when the employee has been working in the same company for longer than six months and the company employs more than five - in the case of new hires after January 1, 2004, more than ten - employees.
During parental leave, the employer generally cannot give notice of termination.
The special protection against dismissal begins with the notification of parental leave by the employee, but no earlier than eight weeks before its commencement.
The special protection against dismissal ends at the end of the parental leave. It also applies to employees who work part-time during parental leave for the same employer, as well as under certain conditions for employees who do not take parental leave after the birth of the child and continue their previous part-time work to the permissible extent of 30 hours per week, or start a corresponding part-time job after the birth.
In exceptional cases, the employer can apply to the authority responsible for labor protection before giving notice of termination, requesting permission to terminate after approval by this authority. The General Administrative Regulations on Protection Against Dismissal during Parental Leave must be observed. The authority must give the affected parents the opportunity to comment on the employer's request.
The authority usually only allows termination, for example, if the company is closing down or its existence is at risk.
If the employer gives notice of termination, the invalidity of the termination must be legally contested within three weeks after the announcement of the authority's decision by filing a lawsuit with the competent labor court. If the lawsuit is not filed, the termination is considered valid. Furthermore, the supervisory authority, usually the Commercial Supervisory Office or the Labor Protection Office, should be informed. If the employer terminates without the consent of the supervisory authority, the three-week deadline mentioned does not apply. However, as the right to file a lawsuit can be forfeited, a lawsuit should be filed within the deadline in this case as well.
Employees on parental leave are not immune to a change in terms of employment.
Therefore, a change in terms of employment can be issued!
See also:
(LAG Hessen, 14.6.2007, 11 Sa 96/06)
Unfortunately, I hope I have been able to help.
