Termination despite parental leave?

In its ruling dated July 5, 2022 (Case No. 16 Sa 1750/21), the Berlin-Brandenburg Regional Labor Court decided that termination is possible during parental leave. This is the case if the original job is no longer available due to a permissible entrepreneurial decision and employment under the previous conditions is no longer possible.


1. facts

The parties are disputing the validity of an ordinary notice of termination. The company had given the plaintiff employee notice of termination for operational reasons during her parental leave. The competent integration office had previously approved the termination. The employee did not accept the offer of change contained in the notice of termination and took legal action against the termination.

The Labor Court dismissed the action. The plaintiff's appeal to the Regional Labor Court was unsuccessful. The appeal to the Federal Labor Court was not admitted.

Decision 2

In the opinion of the Regional Labor Court, the dismissal was effective. The court was convinced that the plaintiff's original job had been eliminated by a permissible entrepreneurial decision. The plaintiff could therefore no longer be employed under the previous conditions. For this reason, in the view of the Regional Labor Court, it was legally permissible for the company to terminate the employment relationship even during the parental leave and to offer the employee a continuation under changed conditions. However, since the plaintiff did not accept this offer of change, the employment relationship was terminated by the notice of termination.

3. conclusion 

According to Section 18 BEEG (Federal Parental Allowance and Parental Leave Act), the employer may not terminate the employment of employees who are on parental leave from the time from which parental leave has been requested.

However, the provision also stipulates that termination may be declared admissible in special cases. This applies in particular if the employer cannot reasonably be expected to continue employing the employee. This declaration of admissibility is usually made by the respective integration offices of the individual federal states. The main case in practice for an unreasonable continued employment of the employee is the plant shutdown. Due to the fact that the work obligation is suspended for an employee on parental leave, behavior-related reasons justifying termination without notice pursuant to Section 626 (1) of the German Civil Code do not occur as frequently.


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