Employment termination v maternity/parental leave

Dear Readers,

Today’s issue of our Newsletter describes the options for terminating the employment of employees on maternity or parental leave.

Employment may be terminated irrespective of the maternity or parental leave, in one of the following methods:

Agreement to terminate employment

  • Using this method, employment may cease in all cases. It is a bilateral legal act agreed by both parties and executed in the form of written agreement in compliance with the Labour Code.

Termination during a probationary period

  • Employees may terminate their employment at any time without any limitation (i.e. irrespective of whether maternity or parental leave is taken).
  • The employer may not end employment in the first 14 calendar days of his/her temporary incapacity for work. However, if the probationary period coincides with maternity or parental leave, the employer is subject to no restriction, and the employment may be terminated. Such a situation seldom occurs in practice; nevertheless, it is worth mentioning.

Expiry of an agreed fixed term

  • Where fixed-term employment has been agreed between the parties, maternity or parental leave is no obstacle to terminating the employment upon expiry of the term.

Notice of termination/Immediate cessation by the employee

  • The employee may serve a notice of termination at any time for any reason or without giving a reason. The notice period begins on the first day in the calendar month following delivery of written notice to the employer. Immediate cessation by the employee is subject to requirements stipulated in the Labour Code.

Notice of dismissal by the employer

  • Dismissal is possible for very limited reasons or even prohibited during maternity or parental leave. A notice of dismissal may be served during maternity or parental leave if the employer’s company or part of it ceases to exist.
  • If the employer’s company or part of it is relocated, a notice of dismissal may be served by the employer during parental leave only.
  • If there is a reason for immediate cessation of employment, the notice of dismissal may only be served on an employee on parental leave. Such employment may not be terminated due to redundancy.

Replacement of an employee taking maternity or parental leave

  • If an employee on maternity or parental leave is replaced by another employee for an indefinite period and the employer wishes to terminate the employment of the returning member of staff due to redundancy, it is not a statutory reason for employment termination, i.e. a cancelled position. If only the position of the returning employee is cancelled and a notice of termination is served on him/her, the notice could be contested in court.

In such a case, the employer has no other option but to agree with one of the employees to terminate their employment (but no on the grounds of redundancy or a cancelled position). To make the employee accept the agreement, they can be offered a certain amount to be paid by the employer upon termination of the position. However, this is not considered statutory severance pay.

Employment termination after maternity leave

  • After the employee returns after maternal leave for which the employee is entitled to take maternity leave, the employer is required to employ the member of staff in his/her original position and place of work. In fact, the employer becomes obliged to keep the same job for the employee for 22 to 28 weeks of maternity leave.
  • After the employee returns from (standard) parental leave, s/he is only entitled to be assigned work under his/her employment contract and in accordance with the type and place of work agreed in the contract. If no such vacancy is available, the employer may serve a notice of dismissal upon the employee due to redundancy. In such a case, the employee is entitled to severance pay reflecting the period of existence of his/her employment.

Please do not hesitate to contact us if you need advice on these issues. We would be happy to help.