Protection of employment during a childcare leave


During the childcare leave, the employee enjoys special protection. There are, however, two situations in which he may lose his job while taking a childcare leave.

In the first case, when the employer employs fewer than 20 employees, the employee uses the general rule laid down in Art. 186 § 1 of the Code. Pursuant to this provision, the employer may not terminate or terminate the employee's employment contract from the moment of submitting the application for parental leave until its completion. There are, however, two exceptions. Termination of an employment contract is possible when the employer declares bankruptcy or liquidation, or when there are reasons justifying the termination of the employment contract without notice due to the fault of the employee.

Pursuant to Art. 186 K. p., The employer is obliged to admit the employee to work after the end of the childcare leave.

The second case concerns a situation where the number of employees is at least 20. Unless separate regulations provide otherwise, the workplace is covered by the provisions of the Act of March 13, 2003 on special rules for terminating employment relationships with employees for reasons not related to employees (Journal U. No. 90, item 844, as amended). Depending on the number of dismissed employees, the Act is characterized by two concepts: collective and individual dismissals.

In the case of a typical collective redundancy, as defined in Art. 1 of the above-mentioned act, the employer has the right to terminate the employment relationship with a person on parental leave if the leave lasts at least 3 months (Article 5 (1) and (3) of the above-mentioned Act) and the reason for the dismissal is not the fault of the employee . The exemption covers:

  1. 10 employees with less than 100 employees
  2. 10% of employees with at least 100 employees but less than 300 employees
  3. 30 employees, employing at least 300 or more employees.

In the event of an individual dismissal (i.e. with fewer employees than provided for in Article 1 of the above-mentioned Act), termination of the employment relationship during the parental leave is allowed under the same conditions, with the proviso that the reason that does not lie with the the employee's side is the sole reason for the dismissal and the company trade union will not raise an objection within 14 days from the date of receipt of the notice of intended termination (Article 10 (1) and (2) of the above-mentioned Act).

In the case of individual dismissals, an important fact is the resolution of the Supreme Court of February 15, 2006, which stated that the provisions of Art. 10 sec. 1 and 2 of the Act on collective redundancies, may be the basis for termination of employment with an employee during the childcare leave and in the event that the conditions described in art. 186 § 1 of the Civil Code, concerning the declaration of bankruptcy or liquidation of the employer or the reasons justifying the termination of the employment contract without notice due to the fault of the employee.

The Ministry of Labor and Social Policy confirmed the admissibility of dismissal of a person who is on parental leave, pursuant to the Act on group dismissals and under the conditions set out in it.