Cancellation of parental leave
Dismissal during parental leave – your special protection against dismissal under Section 18 of the Federal Parental Leave Act (BEEG)
During parental leave, employees enjoy special protection against dismissal. Under Section 18 of the Federal Parental Leave Act (BEEG), dismissal by the employer is generally prohibited – and this applies from the moment you request parental leave. Only in rare exceptional cases may the authorities permit dismissal. Our specialist employment lawyers in Augsburg will review your dismissal and ensure your rights are upheld.
Protection against dismissal under Section 18 of the BEEG in detail
The special protection against dismissal under Section 18 of the Federal Parental Leave Act (BEEG) prohibits the employer from dismissing an employee during parental leave – whether by ordinary dismissal, summary dismissal or dismissal for change of contract. This protection does not begin only at the start of parental leave, but from the moment the employee requests parental leave: at the earliest eight weeks before the start of parental leave until the child reaches the age of three, and at the earliest 14 weeks before the start of parental leave between the ages of three and eight.
The protection against dismissal applies for the entire duration of parental leave – regardless of whether you are receiving parental allowance or not, or whether you are working part-time or are fully on leave. It also applies to each individual period of split parental leave. The protection ends on the last day of parental leave – from the following day, the general rules on protection against dismissal under the KSchG apply.
Important for employees in Augsburg: The prohibition on dismissal applies regardless of the size of the business. Employees in small businesses with fewer than ten staff are also protected from dismissal during parental leave.
Exceptions – when dismissal is permitted during parental leave
In exceptional cases, the relevant regional authority (in Bavaria, the Trade Supervisory Office) may, as an exception, declare the dismissal to be valid. Approval is only granted if the reason for dismissal is not related to parental leave. Recognised reasons include: complete closure of the business with no possibility of transfer to another business, particularly serious breaches of duty by the employee (e.g. criminal offences) and an economic crisis threatening the business’s survival.
The employer must apply for approval before giving notice of dismissal. The employee is heard during the proceedings. Without official approval, the dismissal is automatically invalid. In practice, most applications fail – the authorities apply strict criteria. At our Augsburg law firm, we regularly encounter dismissals that have been issued without the necessary approval and are therefore invalid from the outset.
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Common conflicts relating to parental leave
In addition to direct dismissal, there are other situations in which employees face difficulties during or after parental leave.
Termination at the end of parental leave
Special protection against dismissal ends on the last day of parental leave. Employers therefore often wait until the end of the leave and give notice immediately upon its expiry or shortly thereafter. In this case, the general rules on protection against dismissal apply: the dismissal must be justified on social grounds, the notice period must be observed, and the works council – where one exists – must be consulted. Employees in Augsburg should seek advice well in advance of the end of their parental leave to be prepared for a possible dismissal.
Changes to working conditions upon return
Following parental leave, you are generally entitled to return to your previous role or an equivalent position. Your employer is not permitted to unilaterally impose less favourable conditions on you. If this does happen – for example, a transfer to a lower-level position, a pay cut or the removal of responsibilities – this may constitute covert discrimination, which is prohibited under the AGG. In such cases, you are entitled to claims for damages and injunctive relief.
Parental leave and a termination agreement
The prohibition on dismissal does not protect against a mutual termination agreement – this is based on mutual consent. However, particularly during parental leave, employers often attempt to use a mutual termination agreement to achieve the objective that dismissal prevents them from achieving.
Risks associated with a termination agreement during parental leave
A termination agreement during parental leave carries particular risks: a waiting period for unemployment benefits, loss of special protection against dismissal, and often an insufficient severance payment. Employers deliberately exploit the uncertainty that arises during parental leave. Do not sign a termination agreement without having it reviewed by a solicitor – your negotiating position is generally strong due to the special protection against dismissal.
Part-time work during parental leave and termination of employment
Even if you work part-time during your parental leave (parental part-time work under Section 15 of the Federal Parental Leave Act), you are fully protected against dismissal under Section 18 of the Federal Parental Leave Act. Your employer may not terminate either your part-time employment contract or your suspended full-time employment contract. If your employer rejects your application for parental part-time work, you can enforce this right in court – our specialist solicitors in Augsburg can also advise you on this.
Frequently asked questions about dismissal during parental leave
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This information does not constitute legal advice in individual cases.
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