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.
While an employee is on parental leave, employers are generally prohibited from terminating the employee. There are, however, exceptions, for example, for termination in the event of organisational changes for female employees who are not pregnant and not on maternity leave, and for male employees who are not on parental leave at the same time as female employees would be on maternity leave.
Another exception is where the employment relationship with the employee could be terminated immediately even during parental leave. This is where the employee has a final conviction for a criminal offence or even in a situation where they would be in breach of a business secret.
Employees do not always return to work after parental leave. However, the employer is obliged to hold the job for the employee who is on parental leave. It can, of course, bring in a replacement, but it must always place the employee returning from parental leave in accordance with the employment contract. He is no longer obliged to offer him the same workplace and the same job.
Tip: 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, 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 in the employment relationship, a so-called obstacle to workarises on theemployer’s side. The employer must then provide the employee with wage compensation amounting to 100%of the average earnings until the end of the employment relationship or until the obstacle to work is removed. 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.
Tip: We’ve also written an article on how much severance pay you can claim.
In practice, it is often the case that when returning 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 let it deprive you 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.
Be wary of this if the employer abolishes the position on the last day of parental leave or within a short period of 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 invalid.
Tip: We have discussed this topic in more detail in our article Termination for organizational reasons.
An employer may 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 first day of the month following the delivery of the notice. If the notice of termination is given on 1 January, the notice period shall start on 1 February and end on 31 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 have 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:
Tip: A notice is also invalid if it is given to a pregnant employee who does not 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.
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