The employer is obliged to employ the mother upon her return from parental leave in accordance with the employment contract. However, it often happens that the position is filled. What rights do returning employees have, can they be dismissed after parental leave, can they claim severance pay? In this article we answer the most important questions about returning to work after parental leave.
Haveyou been given notice after parental leave or is your employer offering you a deal? Make sure you don’t lose any severance pay or wage replacement. We’ll check all the documents and suggest a course of action.
During pregnancy and while on maternity, paternity or parental leave, special protection against dismissal applies to employees. However, this is not an absolute protection. The law allows for a few exceptions, typically in the event of the closure of the employer or part of it, or in the event of its relocation.
Another exception is if the employment relationship with the employee could be terminated immediately even during parental leave. For example, in the event of a final conviction for a specified intentional offence or a particularly serious breach of work obligations.
Employees do not always return to work under exactly the same conditions after the end of parental leave. However, if they return before the child reaches 2 years of age, the employer must reinstate them to their original job and workplace. Only if this is not possible, or if the employee does not return until a later date, will he or she be reinstated according to the employment contract.
Parental leave is paid to the mother until the child is 3 years old. If she wants to stay at home for a fourth year, she must agree to take unpaid leave from work, for example.
However, if there is someone else in the position and the employer is unable to reassign the employee to the same position after the parental leave, they can enter into a change of employment agreement. However, it is up to the employee to agree to such changes. Of course, the employer may not force the employee to change the employment relationship, for example to reduce working hours or change the type of work.
A practical example: Ms Vomáčková wanted to return to work after her parental leave, but her employer offered her a fixed-term contract. By accepting this agreement, even though she did not have to, she deprived herself of the possibility of severance pay.
If the employer is not able to assign the employee to a job that corresponds to the employment contract, and they do not conclude an agreement on a change of employment, a so-called obstacle to work on the part of the employer arises. The employer must then compensate the employee for100% of the average wage until the end of the employment relationship or until the obstacle to work has ceased. This situation is not a statutory ground for dismissal.
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In many cases, however, there will be organisational changes – such an employee would either enter into a termination agreement upon return or be dismissed for redundancy. In short, the employer can only give notice for statutory reasons, with a notice period, and in some cases must provide the employee with severance pay, for example, due to organisational changes, redundancy and others.
Mrs Benešová contacted us shortly before returning from parental leave. Her employer informed her that her original position had already been filled by another employee and sent her a termination agreement to sign without giving any reason. At the same time, he indicated that if she did not sign the agreement, he would not have a job for her anyway.
We first reviewed her employment contract, internal communications with the employer, and the draft agreement. It turned out that the employer had not made a real organizational change, but only wanted to keep the employee who had been covering for Ms. Beneš during her parental leave. We therefore advised the client not to sign the agreement as proposed and prepared a written statement on her behalf, in which she insisted on assigning work according to the employment contract.
As a result, she renegotiated with the employer. In the end, the client agreed to terminate the employment relationship by agreement, with an explicit statement of the organizational reason and financial compensation equivalent to the severance pay. The client thus avoided a protracted dispute and at the same time did not lose the rights she would have lost by signing the original agreement.
We have also written an article on how much severance pay you can claim.
In practice, it is often the case that when an employee returns after parental leave, the employer does not have a job for the employee due to organisational changes. In such a case, the employer proposes to terminate the employment relationship by agreement on the grounds of redundancy and the employee is entitled to severance pay. Also for the purpose of assessing the amount of unemployment benefit, it is important that the reason for the termination of the employment relationship is specifically described in the agreement. Remember that there is no such thing as termination by agreement. Don’t deprive yourself of what you are entitled to. This is what almost happened to Ms Radka, who almost deprived herself of three months’ severance pay.
Another example is when another employee with an open-ended contract is working in the job. In this case, the employer cannot terminate the employment relationship for organisational reasons, even though the employee is ‘redundant’. The reason is the absence of an organisational change. The termination would thus be invalid and the employee could sue the employer. A common solution is to terminate the employment relationship by agreement, with the employee being paid a certain remuneration as compensation for the severance payment.
Beware if the employer eliminates the position on the last day of parental leave or within a short time after returning to work. In these cases, it is advisable to examine in more detail whether the action is not an expedient measure and whether all the requirements for a lawful termination of employment are met. If they are not, it is possible to bring an action before the court for the termination to be void.
We have discussed this topic in more detail in the article Termination for organizational reasons.
An employer can only give notice to an employee for the reasons set out in the Labour Code. The notice must be delivered to the employee in writing, otherwise it is invalid. The period of notice shall be at least 2 months and shall start on the date of delivery of the notice and end on the same numerical date. Therefore, if the notice is served on 1 January, the notice period starts on that day and, if the notice period is two months, ends on 1 March.
During the notice period, the employer is obliged to assign the employee to work according to the employment contract. In the event that this is not possible, this is an obstacle on the part of the employer, which we discussed above, and the employee is thus entitled to wage compensation in the amount of average earnings.
These are situations where the parents are in what is known as a period of protection. This is, for example, when:
A notice of termination is also invalid if it is given to a pregnant employee who does not yet know she is pregnant, but it is proven retrospectively that she was already pregnant at the time of delivery.
If the employee no longer wants to take up the same job, for example if he/she has found a better job during parental leave, he/she can agree with the employer to terminate the employment relationship by agreement (then it is sufficient to agree on the date on which the employment relationship will end) or he/she can resign. The employee is in a much better position here, as he or she can give notice to the employer for any reason or for no reason at all. He is therefore not restricted by anything. The employment relationship ends on the expiry of the notice period, which is at least 2 months.
Remember that the employment contract is valid even if there are changes in the employer. Therefore, always refer to it when negotiating the continuation or termination of employment after parental leave. Remember that making concessions can deprive you of the high severance pay you are legally entitled to. In a situation where you feel your termination after parental leave is unjustified, you can contact the Labour Inspectorate or go straight to an Accessible Advocate for a quicker and more effective assertion of your rights.
The employment contract is the basis. If the employee starts back, the employer must assign work according to it. If the child returns before the age of 2, the protection of returning to the original job and workplace is even stronger. If the employer does not have an appropriate job, this may be a hindrance on the employer’s part, not a reason why the employee should stay at home without compensation or sign an unfavourable agreement.
Termination after parental leave is only possible for statutory reasons. In the case of redundancy, it must be examined whether there has actually been an organisational change, whether the dismissal is properly justified and whether the employee is entitled to severance pay. If the employment relationship is terminated by agreement, the reason for the termination should be explicitly stated, especially if it is for organisational reasons.
Hasty signatures are the biggest risk in practice. Often an employee will sign an agreement, a contract amendment or a new fixed-term contract believing that he or she has no other choice. However, this may deprive them of severance pay, wage compensation and the possibility of defending an invalid termination. It is therefore worth having the documents checked before signing.
Yes, the employment relationship continues after parental leave. Your employer must assign you to work according to your contract of employment or, if you return before your child is 2 years old, respect the stronger rules for returning to your original job and workplace.
Yes, but only for a legal reason and in writing. Typically, redundancy is dealt with, but it must actually be supported by an organisational change.
No. The agreement is voluntary. If you sign it without giving a reason or without compensation, you may lose your severance pay or other rights.
Yes, if the employment relationship ends, for example for organisational reasons or redundancy. It depends on the specific reason for termination and the length of the employment relationship.
Ask for specific explanations and documents. If it is not a genuine organisational change, the notice may not be valid and you may be entitled to wage compensation.
You don’t have to accept it. Redundancy is a change in employment and requires your consent.
As soon as possible. The statutory time limit for bringing an action for unfair dismissal runs, and missing it can mean losing the opportunity to defend yourself.
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