Updated on August 20, 2026: We have added case law from the Federal Labor Court regarding whether an unreasonable instruction must be followed, working hours after the end of part-time parental leave, and the reduction of vacation time for the duration of parental leave.
Anyone considering taking parental leave also wonders what will happen to their job once the leave ends. Can I return to my old position? Can my employer transfer me to a different position—or even to a different location? This is also a crucial issue for employers, as it can affect their workforce planning. However, the answers aren’t always straightforward.
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 some 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. The employer must then give good reasons why the transfer to this new position is so important to him.
Special case: Years of activity beyond the contract
In practice, it is not uncommon for employees to be assigned tasks over the course of several years that were not originally intended to fall within their scope of duties. In particular, employees may end up taking on management responsibilities on a long-term basis that are not part of their employment contract. This can lead to an expansion of the job description in the employment contract, resulting in an entitlement—upon returning from parental leave—to a position that includes the managerial duties previously performed. It is therefore worthwhile to take a close look at the circumstances of each individual case.
Does a transfer have to be carried out immediately?
In practice, this question almost always arises first, because the new position is usually expected to begin on the first day of work. In 2017, the Federal Labor Court ruled in favor of employees: An employee is not even temporarily bound by an instruction that exceeds the bounds of reasonable discretion (BAG, judgment of October 18, 2017, 10 AZR 330/16). In doing so, the court abandoned its previous position, under which an instruction had to be followed until the matter was resolved in court.
In practice, this only partially defuses the situation, because anyone who considers the directive unreasonable and therefore fails to comply with it bears the risk of their own judgment: If it later turns out to be valid, they face the threat of a warning or termination. Anyone who is unsure should therefore initially perform the new duties on a regular basis, while making it clear in writing that this is done subject to further review, and seeking clarification of the legal situation at the same time.
What are the working hours after returning to work?
Anyone who worked part-time during parental leave returns to their contractually agreed-upon working hours afterward. Parental part-time work is tied to parental leave and ends when parental leave ends; a separate request to return to full-time work is not required. For births on or after September 1, 2021, the permitted scope of this part-time work ranges from 15 to 32 hours per week on a monthly average, § 15(4) and (7) BEEG; for earlier births, the limit was 30 hours per week.
Anyone who wants to work fewer hours on a permanent basis needs a specific legal basis for doing so. Options include a permanent reduction in working hours under Section 8 of the Part-Time and Fixed-Term Employment Act (TzBfG) or “bridge part-time” work limited to one to five years under Section 9a of the TzBfG, which has been available since 2019 in companies with more than 45 employees. Both entitlements require a timely application and are subject to the employer’s grounds for refusal, so the request should be raised early on.
What happens to the vacation time accrued during parental leave?
The employer may reduce the annual leave entitlement by one-twelfth for each full calendar month of parental leave, pursuant to Section 17(1) of the BEEG. However, this does not happen automatically: The employer must issue a written notice to this effect, which must be received by the employee. If no such notice is provided, the full vacation entitlement remains in effect. The Federal Labor Court has confirmed that this provision complies with EU law and, at the same time, clarified that the notice may be issued before, during, or after parental leave, but not before the employee has requested parental leave (BAG, judgment of March 19, 2019, 9 AZR 362/18).
The court draws a line when the employment relationship ends: Only the annual leave is subject to reduction, not the entitlement to compensation in lieu. Anyone who leaves the company following parental leave and has not received a notice of reduction by that time may therefore demand payment in lieu of the leave.
Seeking and negotiating
As a rule, there is generally no entitlement to resume the exact same position as before. Employers typically have some leeway in this regard. That’s why it’s worth getting in touch with each other early on to discuss your return to work. If it turns out that the employer wants to assign an employee to a position that is no longer covered by the employment contract, an amendment to the contract can be negotiated. If an agreement cannot be reached, the employer may, as a last resort, issue a notice of termination with the intent to amend the contract and thus enforce the change. At that point, at the very latest, it makes sense to seek legal advice.
Frequently Asked Questions About Returning from Parental Leave
Am I entitled to my old job after parental leave?
Employment, yes—but generally not the exact same position. The employer may, within the scope of its managerial authority, assign a different job (Section 106 of the Trade Regulation Act), provided that the employment contract permits it and the new position is of equivalent value. The more specifically the contract describes the position, location, and duties, the less leeway there is.
Do I have to accept a transfer after parental leave?
Only if it is reasonable. According to the case law of the Federal Labor Court, an employee is not bound by an unreasonable instruction, not even on a provisional basis (BAG, judgment of October 18, 2017, 10 AZR 330/16). However, anyone who fails to comply with the instruction for this reason bears the risk that it may later be found to be valid.
What does “equivalent position” mean?
A position is considered equivalent if it is comparable to the previous one in terms of job value, responsibility, and compensation. A demotion within the hierarchy, the removal of managerial responsibilities, or a reduction in compensation cannot be enforced through managerial authority, but only through a contract amendment or a notice of modification.
Can I be fired while on parental leave?
Only in exceptional cases. From the time a request for parental leave is submitted—at the earliest, eight weeks before it begins—and throughout the parental leave period, termination is prohibited under § 18 BEEG; for parental leave taken between the child’s third and eighth birthdays, the notice period is 14 weeks. Termination is permitted only if the competent authority has previously declared it permissible.
Do my vacation days expire during parental leave?
It does not lapse, but may be reduced: by one-twelfth for each full calendar month of parental leave, § 17(1) BEEG. This requires a statement from the employer; without it, the entitlement remains in full (Federal Labor Court [BAG], judgment of March 19, 2019, 9 AZR 362/18).
Can I continue working part-time after parental leave?
Part-time work during parental leave ends automatically when the parental leave ends. Anyone who wishes to work fewer hours on a permanent basis should submit an application under Section 8 of the Part-Time and Fixed-Term Employment Act (TzBfG) or apply for temporary bridge part-time work under Section 9a of the TzBfG. Both options should be discussed well in advance of returning to work, as the employer may raise operational objections.
If you have any questions on this topic or need help, please do not hesitate to contact us!
