Returning from parental leave (urlop rodzicielski) is a moment when many employees think about their professional situation and job security. Can the employer give notice straight after the leave ends? What protection do parents have in the first months after returning to work? These questions are particularly important in a rapidly changing labour market, with employees increasingly aware of their rights. We handle leave applications, returns to work and personnel files for businesses that choose our HR and payroll services.
The legal rules protecting employees returning from parenthood-related leave are complex and need a detailed explanation. Labour law provides various safeguards, but it also sets out situations in which the employer may lawfully end the employment relationship. Knowing these rules is essential both for employees planning to return to work and for employers organising HR processes.
Parental leave – the basics
Parental leave (urlop rodzicielski) is one of the most important employee rights connected with caring for a child. Under the Labour Code (Kodeks pracy), employees who are the child's parents are entitled to parental leave to care for the child for a specified period (Article 182(1a) § 1). The leave is granted in one go or in no more than 5 parts, at the latest by the end of the calendar year in which the child turns 6 (Article 182(1c)).
Parental leave lasts up to 41 weeks where one child is born in a single birth. Where at least two children are born in a single birth, it increases to 43 weeks. The leave is available to both parents jointly and both parents may use it at the same time
An important feature of parental leave is its flexibility. Both parents may use it at the same time, but the total leave may not exceed the statutory length. In addition, while one parent receives maternity benefit for the period corresponding to parental leave, the other parent may take parental leave at the same time.
From 26 April 2023, parental leave was extended by 9 weeks (from 32 to 41 weeks, and for multiple births from 34 to 43 weeks). The key point is that each parent has an exclusive right to 9 weeks of this leave, which cannot be transferred to the other parent (Article 182(1a) § 4)
The main purpose of parental leave is to allow the child's mother or father to be with their newborn in the first months of its life. This period is considered particularly important for building family bonds and for the proper functioning of the family. This is why the legislator introduced special protective mechanisms for employees using this right.
During parental leave the employee remains employed but is released from the duty to work. As a rule, the employer may not dismiss the employee during this period, except in exceptional situations: notice is possible only if the employer is declared bankrupt or goes into liquidation, and termination without notice through the employee's fault only with the consent of the company trade union representing the employee (Article 177 § 1 point 2 and § 4).
Protection against dismissal – detailed rules
Polish labour law provides an extensive system of protection for employees using parenthood-related leave. Protection during parental leave results from the same provision as protection during pregnancy and maternity leave (Article 177 of the Labour Code), and after returning to work – from the rules on reduced working time for people entitled to parental leave (urlop wychowawczy) (Articles 186(7) and 186(8)).
Under Article 186(4) of the Labour Code, after parental leave (and also after maternity leave, paternity leave and parental leave (urlop wychowawczy)) the employer allows the employee to return to work in their previous position or, if this is not possible, in an equivalent position, on terms no less favourable than those that would have applied had the employee not taken the leave. Allowing the employee to return to work is an obligation of the employer that follows directly from the statute
The key provision on protection against dismissal during parental leave is Article 177 § 1 of the Labour Code, and after returning to work – Article 186(8) § 1. Under these provisions, the employer may not give notice or terminate the employment contract in specific periods and situations connected with the use of parenthood-related rights.
Protection against dismissal covers the following periods:
- From the day the employee submits a request for parental leave (or part of it) until the day the leave ends (Article 177 § 1)
- From the day an employee entitled to parental leave (urlop wychowawczy) submits a request for reduced working time until the day of return to full working time, but no longer than for a total of 12 months (Article 186(8) § 1 point 2)
- During annual leave taken after returning – in this period the employer may not give notice (Article 41)
Where an employee submits a request for parental leave or reduced working time earlier than 21 days before starting to use it, the ban on dismissal only starts to apply 21 days before the start of the leave or the reduced working time (Article 177 § 1(1) point 2 and Article 186(8) § 3)
Another important element of protection is that, at the employee's request, the employer grants annual leave directly after parental leave (Article 163 § 3 in conjunction with Article 182(1g)). During annual leave the employer may not give notice (Article 41), which further extends the period of protection against dismissal.
Exceptions to the ban on dismissal
Despite this extensive legal protection, there are situations in which the employer may lawfully end the employment of an employee returning from parental leave or working reduced hours. These exceptions are strictly defined by law and are exceptional in nature.
The first exception is the declaration of the employer's bankruptcy or the employer's liquidation. In this situation, termination of the employment contract is permitted because the employer ceases to exist as a business entity. The liquidation must concern the whole workplace, not just part of it.
The liquidation of part of a workplace, however large, is not the liquidation of the employer, so it does not give the right to dismiss an employee during the protection period – during parental leave and, after returning, for up to 12 months if a request for reduced working time has been submitted (Article 177 § 4 and Article 186(8) § 2)
The second exception is grounds for terminating the employment contract without notice through the employee's fault. This means that disciplinary dismissal is possible if the employee commits a serious breach of basic employee duties. During parental leave (from the day the request is submitted), this additionally requires the consent of the company trade union representing the employee (Article 177 § 1 point 2).
A special situation arises where the position held by the employee returning from parental leave is eliminated. In such a case the employer must (Article 186(4)) allow the employee to return to work:
- In their previous position, if possible
- On terms no less favourable than those that would have applied had the employee not taken the leave
- In a position equivalent to the one held before the leave – where returning to the previous position is not possible
Only when these steps are not possible, and the employee is no longer protected against dismissal, may the employer consider giving notice. In the event of a dispute, it is the employer who must show that it genuinely had no suitable position for that person.
Dismissal procedures after parental leave
Where there are legal grounds for dismissing an employee after returning from parental leave, the employer can choose between different ways of ending the employment relationship. The right procedure depends on the specific circumstances and the legal basis for the dismissal.
In the case of the employer's bankruptcy or liquidation, the employer may use two forms of termination:
- Notice of termination with the notice period
- Mutual agreement without a notice period
Notice of termination is a unilateral act of the employer, whereas a mutual agreement requires the consent of both parties – the employee does not have to accept it. When giving notice during the protection period under Article 177, the employer must agree the termination date with the company trade union representing the employee (Article 177 § 4). The employee should consider which option is better for them, taking into account their career plans and financial situation
Disciplinary dismissal follows a more formal procedure. Among other things, the Labour Code requires the contract to be terminated within 1 month of the employer learning of the circumstance justifying the dismissal (Article 52 § 2). In practice this means:
- Documenting the breach of employee duties
- Carrying out an investigation
- Meeting the deadlines set out in the Labour Code
- Giving the employee the opportunity to defend themselves
Where a position is eliminated, the procedure includes:
- Trying to find another position for the employee
- Offering equivalent or similar work
- Keeping the current level of pay
- Only as a last resort – giving notice
| Basis for dismissal | Form of termination | Notice period | Additional employer obligations |
|---|---|---|---|
| Employer's bankruptcy or liquidation | Notice/mutual agreement | Depends on length of service (Article 36) | Agreeing the date with the trade union during the protection period under Article 177 (Article 177 § 4) |
| Disciplinary dismissal | Without notice | Immediate | Documenting the reasons; during the protection period under Article 177 – trade union consent |
| Elimination of position | Notice | Depends on length of service (Article 36) | Only outside the protection period; first an equivalent position (Article 186(4)) |
Employee rights in the event of unjustified dismissal
An employee who has been wrongly dismissed after returning from parental leave is entitled to effective legal protection. The legal system provides various ways to pursue one's rights and obtain appropriate redress.
The basic right is the right to appeal to a labour court. The employee may demand:
- Continuation of the employment relationship
- A finding that the employer's actions were unjustified
- Reinstatement on the previous terms
- Payment of compensation
Cases for declaring notice ineffective, reinstatement and compensation are heard by district courts (sąd rejonowy) – labour courts (Article 461 § 1(1) of the Code of Civil Procedure). The claim can be filed with the court having jurisdiction over the employer or the court in whose area the work is or was performed (Article 461 § 1 of the Code of Civil Procedure). An appeal against notice of termination must be filed within 21 days of the day the notice was delivered (Article 264 § 1 of the Labour Code). An employee bringing a claim does not pay court costs (Article 96(1) point 4 of the Act on court costs in civil cases) – a fee is charged only on an appeal in cases where the value of the claim exceeds PLN 50,000 (Article 35(1))
Court proceedings in unjustified dismissal cases include the following stages:
- Preparing and filing the claim with the court
- Serving the claim on the employer
- Taking of evidence
- The court's judgment
- Possible appeal proceedings
Under the Labour Code, if the court finds that notice of termination of a fixed-term or indefinite employment contract is unjustified or breaches the rules on giving notice, the labour court may rule on:
- Notice being ineffective – if the contract has not yet ended
- Reinstatement of the employee on the previous terms
- Compensation – if reinstatement is impossible or inappropriate
The labour court may refuse the employee's claim for notice to be declared ineffective or for reinstatement if it finds that granting the claim is impossible or inappropriate. In that case, the court awards compensation. This does not, however, apply to employees protected under Article 177 and Article 186(8) – for them the court may award compensation instead of reinstatement only if reinstatement is impossible because of the employer's bankruptcy or liquidation (Article 45 § 3)
Compensation for defective notice amounts to pay for 2 weeks to 3 months, not less than for the notice period (Article 47(1)), and for termination without notice – pay for the notice period (Article 58). Its amount depends, among other things, on:
- Length of employment (the notice period depends on it)
- Amount of pay
- Circumstances of the dismissal
- Type of employment contract
Amended rules – ban on preparing a dismissal
An important change in Polish labour law was the introduction from 26 April 2023 (Act of 9 March 2023, Journal of Laws (Dz.U.) 2023 item 641) of a ban on preparing the dismissal of employees using parenthood-related rights. This rule significantly strengthens the legal protection of parents and aims to prevent employers from circumventing the law.
Under Article 177 § 1 of the Labour Code as amended, the employer may not:
- Give notice or terminate the employment of a female or male employee during pregnancy
- Dismiss an employee during maternity leave
- End the employment from the day a request for maternity, paternity or parental leave is submitted until the day the leave ends
- Prepare to give notice or terminate without notice the employment of the employees listed above
The law does not define "preparations" for dismissal. It is generally accepted that this means actions aimed at ending the employment relationship, for example gathering documentation, holding conversations with the employee for this purpose or making decisions about a future dismissal
Termination without notice during this period is permitted only where both of the following apply:
- There are grounds for terminating the employment contract without notice through the employee's fault
- The company trade union representing the employee consents to terminating the contract with immediate effect
This rule is particularly important in practice, because:
A manufacturing company with 200 employees planned to dismiss an employee immediately after her return from parental leave. While she was still on leave, the company started gathering documentation to justify the dismissal and held conversations with other employees about her performance. Such actions are now prohibited and may result in legal liability for the employer.
Practical aspects of returning to work
Returning to work after parental leave requires proper preparation by both the employee and the employer. Understanding the practical aspects of this process helps avoid misunderstandings and conflicts and ensures a smooth return to the normal rhythm of work.
An employee planning to return to work should:
- Submit the relevant requests within the required deadlines
- Contact the employer about organising the return
- Learn about organisational changes in the company
- Prepare to take outstanding annual leave
- Consider requesting reduced working time
Outstanding annual leave provides additional protection against dismissal, because during it the employer may not give notice (Article 41). The exceptions are disciplinary dismissal (termination without notice) and the declaration of the employer's bankruptcy or liquidation (Article 41(1))
The employer, in turn, must:
- Provide a position for the returning employee
- Inform the employee about organisational changes and procedures
- Enable a smooth adjustment to the new conditions
- Respect requests for reduced working time
- Comply with the bans relating to protection against dismissal
Particular attention should be paid to situations where:
- The position was eliminated during the leave
- There have been organisational changes in the company
- The employee wants to work reduced hours
- A transfer to another position is necessary
Case law and interpretations
Court practice in cases concerning dismissals after parental leave has developed a number of important interpretations and precedents that help in understanding the real scope of employee protection. An analysis of court rulings provides valuable guidance for both employees and employers.
The starting point is Article 186(4) of the Labour Code: after the leave ends, the employer allows the employee to return to work in their previous position or, if this is not possible, in a position equivalent to the one held before the leave. Allowing the employee to return to work is the employer's obligation, and if the employer refuses to fulfil it, the employee may pursue their rights in court.
According to case law, the inability to allow an employee to return after parenthood-related leave to their previous or an equivalent position may justify giving notice. In a dispute, however, the employer must show that it had no such position – if it did have a suitable position, the dismissal will be unjustified
An important Supreme Court (Sąd Najwyższy) judgment of 3 November 1994 (I PRN 77/94) states that the inability to employ an employee after parental leave (urlop wychowawczy) in a position equivalent to the one held before the leave or consistent with her qualifications justifies giving notice. The same obligation under Article 186(4) now also applies to parental leave (urlop rodzicielski). The key point, however, is that the employer must prove that it genuinely has no suitable position.
The law and case law show that:
- During protection periods, dismissal is possible only in the exceptions set out in the law
- The employer must show genuine reasons preventing employment
- The liquidation of part of a workplace does not justify dismissing a protected employee
- The employer must allow the employee to return to work in their previous or an equivalent position (Article 186(4))
International standards of protection
Polish rules protecting employees after parental leave form part of the wider context of international standards for employee rights, in particular European Union law.
Directive (EU) 2019/1158 of the European Parliament and of the Council on work-life balance for parents and carers requires Member States to prohibit the dismissal and all preparations for the dismissal of workers because they have applied for or taken parental leave (Article 12), and to ensure a return to the same or an equivalent job (Article 10). Poland implemented it through the amendment to the Labour Code in force from 26 April 2023.
In Polish law this means that:
- Protection covers the period from the leave request until the end of the leave
- Preparations for dismissal are also prohibited
- The employee has the right to return to their previous or an equivalent position
- Disputes are decided by a labour court
International standards for protecting working parents cover not only the ban on dismissal, but also the obligation to ensure a return to the same or an equivalent position, the preservation of employment terms and protection against discrimination for using parenthood-related rights
