If you want to take parental leave, you also need to ask yourself what happens to your job after your parental leave ends. Can I return to my old job? Can the employer transfer me to another position, even to another location? This is also crucial for employers because personnel planning can depend on it. However, the answers are not always easy.

Employment guarantee

During parental leave, the employment relationship remains legally valid, only the contractual obligations are suspended. The employee does not have to work, but does not receive any money either. At the end of parental leave, the mutual obligations are revived. Mothers or fathers are entitled to continue to be employed. In this respect, there is an employment guarantee. Employees should not have to fear losing their job because they want to look after their offspring for a while. Employers can therefore only terminate employment during parental leave in exceptional cases and with the approval of the authorities.

No job guarantee

However, employees are not necessarily entitled to be employed in exactly the same position they had before parental leave. The employment „only“ has to comply with the provisions of the employment contract. The previous conditions, for example regarding position, working hours and place of work, must always be fulfilled. However, many employment contracts are flexible in this respect and allow a transfer to another position. This is because the employer can determine the content, location and time of the job in more detail within the scope of its right to issue instructions in accordance with Section 106 GewO.

If the employer wishes to assign an employee to a different job after the end of parental leave, they can do so within the scope of this right of direction. However, there are limits to this. The framework is set out in the employment contract. If the position and place of work are only roughly outlined there, the employer has leeway. The same applies if an effective transfer clause is included.

Entitlement to an equivalent position

In any case, however, the employer must exercise his right to issue instructions at his reasonable discretion. This means that they cannot simply make arbitrary decisions, but must also take the employee’s interests into account and weigh them up against their own interests. In principle, a transfer to another position is only possible if the new position is at least equivalent and the employee is suitably qualified for it. The employer must also take the employee’s personal situation into consideration. If the new job involves considerably more business trips, this can lead to childcare problems for the young parents. In this case, the employer must provide good reasons as to why the transfer to this new position is so important to them.

Special case: Years of activity beyond the contract

In practice, it is not uncommon for employees to be assigned tasks over a period of years that were not originally intended to fall within their area of responsibility. In particular, it can happen that management tasks that are not part of the employment contract are taken on permanently. This can lead to an extension of the job description in the employment contract, which means that when the employee returns from parental leave, they are entitled to a job that includes the management tasks previously performed. It is therefore worth taking a close look at the circumstances of the individual case.

Seeking and negotiating

It can be concluded that, as a rule, there is no specific entitlement to the old job. The employer tends to have some leeway. It is therefore worth contacting each other at an early stage and discussing a return to work. If it turns out that the employer wants to deploy an employee in a position that is no longer covered by the employment contract, a contract amendment can be concluded. If no agreement is reached, the employer can, in the worst case, issue a notice of termination and thus force the contract amendment. This is the latest point at which it makes sense to seek legal advice.

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