Termination despite parental leave?

July 23, 2022

The Berlin-Brandenburg State Labor Court has with judgment v. July 05.07.2022, 16 (Az: 1750 Sa 21/XNUMX) decided that termination is possible during parental leave. This is the case when the original job has been eliminated due to a permissible business decision and employment under the previous conditions is no longer possible.

1. FACTS

The parties dispute the effectiveness of an ordinary notice of change. The company had given the plaintiff employee notice of termination for operational reasons during her parental leave. The responsible integration office had previously approved the termination. The employee had not accepted the offer of change contained in the change notice and had defended herself against the notice in court.

The labor court dismissed the lawsuit. The plaintiff's appeal to the regional labor court was unsuccessful. The appeal to the Federal Labor Court was not permitted.

2. DECISION

According to the state labor court, the termination was effective. The court was convinced that the plaintiff employee's original job had been eliminated as a result of a permissible business decision. The plaintiff could therefore no longer be employed under the previous conditions. For this reason, from the perspective of the State Labor Court, it was legally permissible for the company to terminate the employment relationship during parental leave and offer the employee a continuation under changed conditions. However, since the plaintiff did not accept this offer of change, the employment relationship was terminated.

3. CONCLUSION

The employer may accommodate employees who are on parental leave § 18 BEEG (Federal Parental Allowance and Parental Leave Act) from the time parental leave was requested.

However, the regulation also stipulates that in special cases termination can be declared permissible. This applies in particular if continued employment is unreasonable for the employer. This declaration of admissibility is usually made by the respective integration offices of the individual federal states. The main practical application for an unreasonable continued employment of the employee is the shutdown of a company. Due to the fact that the obligation to work is suspended for an employee on parental leave, behavioral reasons that justify termination without notice in accordance with Section 626 Paragraph 1 of the German Civil Code (BGB) do not occur so often.