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Ms Zdena, whose employer gave her a so-called notice of redundancy, contacted the office of the Accessible Lawyer. Ms. Zdena accepted it, but after two weeks she discovered that she was at the end of her second month of pregnancy. She therefore asked us whether it was possible to defend against the dismissal in this case.
TheLabour Code prohibits an employer from giving notice to an employee during the so-called protection period. It applies, for example, to a situation where the employee is pregnant. What is relevant is the pregnancy itself, which has already occurred at the time of the termination, and not necessarily the knowledge of it. This includes situations where the pregnancy has just begun and the employee is not yet aware of it. In Ms Zdena’s case, it was undisputed that she was already six weeks pregnant at the time of her dismissal, even though she did not know that for certain until later. If, however, the notice had been given on the day of the beginning of the pregnancy (five days after the pregnancy), it would have been decisive what the doctor had determined to be the starting date of the pregnancy.
What does the protection period protect against and when?
The protection period specifically refers to protection against termination. It is by no means limited to pregnant women. The prohibition against termination during the protection period also applies to
- an employee who is temporarily incapacitated (unless he or she has deliberately caused the incapacity or the incapacity is the direct result of his or her drunkenness or substance abuse),
- a staff member who is on military exercises or on operational deployment from the date on which he receives his call-up order until 2 weeks after his release from these types of service,
- a staff member on long-term full release for the performance of a public function,
- a servant on parental leave,
- an employee who normally works at night and is now temporarily unfit for night work,
- an employee who provides long-term care in cases under the Sickness Insurance Act or cares for a sick child under the age of 10.
An interesting twist on the circumstances is that although the employee has been given notice and has not been in a protected period, a condition related to the protected period then arises and this condition lasts longer than the original notice period.
Let’s imagine an example where Ms Margaret is given notice at the end of June, entirely in accordance with the law and the Labour Code. On 1 August, however, her young daughter falls seriously ill, has to undergo surgery, and then has to spend a long stay in hospital and then in a spa. All this will drag on until mid-November. The employment relationship would not end until mid-December, after the rest of the notice period. The notice period did not run for the whole of August as originally planned.
According to the Labour Code, if an employee is given notice before the start of the protection period, then the protection period is not counted as part of the notice period and the employment relationship will only end when the remaining part of the notice period expires after the protection period. The only exception to this is if the employee himself informs the employer that he does not insist on the extension of the employment relationship.
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How does the protection period differ from the protection period?
These terms are of course often confused, as they sound almost identical. However, employment law associates different situations with them. A protection period is defined by the Sickness Insurance Act, refers to the period after the end of employment, relates to entitlement to sickness or maternity leave and serves to ensure that a person does not end up destitute after leaving employment.
In the case of sickness insurance, it lasts 7 calendar days from the end of the insurance. If you fall ill during this time, you can take sick pay.
Mr Robert was given notice by his employer followed by two months’ notice. At the end of the notice period, Mr Robert fell ill. Let us now imagine three possible scenarios of how his illness might have taken place.
Mr Robert fell ill five days before the expiry of the notice period and thus became entitled to sick pay. However, during the first two weeks of the temporary incapacity for work, the employer pays the sick person in the form of wage compensation for the working days. From the 15th day of the sickness absence, the sick pay is paid by the Social Insurance Institution for calendar days (including weekends and public holidays). Thus, Mr Robert was paid by his employer for the first five days of his illness, but was not paid for the following nine days (his entitlement from his employer ceased at the end of his employment and his entitlement to sick pay from the state had not yet arisen) and from the 15th day of his illness he became entitled to sick pay from the state (if his illness lasted only six days, then the five-day payment from his employer would end his entitlement).
In the second case, Mr Robert fell ill 14 days before the end of his notice period. All of this time was covered by his employer’s wage replacement, and the first day after the termination of his employment (and also the 15th day of his illness) was followed by the “payment” of sickness benefits.
In the third case, Mr Robert did not fall ill until six days after his employment was terminated. He still fell within the seven-day protection period and, assuming his illness lasted more than 14 days, he would also be entitled to sick pay from day 15.
A much longer period of 180 days (i.e. 6 months) after the end of the gainful activity that gave rise to the sickness insurance will then apply for the entitlement to maternity pay . This is logically due to the length of the pregnancy, which is approximately 280 days. Typically, therefore, this protection applies to situations where a woman becomes pregnant during a period in which she has an employment relationship based on an employment contract that is terminated for some reason (recall that the employer makes the employee almost ‘unemployable’ during this period). Thus, if a woman gives birth within 180 days of the termination of her employment, she will retain her entitlement to maternity leave thanks to this protection period.
Tip: In the above example, it is necessary to distinguish between entitlement to maternity leave and parental leave, which is not related to the existence or termination of the employment relationship. We have discussed the difference between maternity and parental leave in detail in our article.
For the protection period, an additional rule applies that if the participation in the insurance is less than 180 days (or less than 7 days for sick leave), the protection period is reduced. Thus, if the employment relationship lasted only 60 days, the protection period in relation to maternity leave is also only 60 days.
When does the withdrawal period not apply?
The standstill period does not apply to all situations without exception. Typically, it does not apply to persons in receipt of an old-age pension or a level III disability pension, or to pupils and students where the employment falls within the school holiday period. It also does not apply to work under a work performance agreement and in certain other situations where the law so provides.