Parental leave (urlop wychowawczy) is one of the most important employee rights connected with caring for a child. Many employees, however, wonder whether they can be dismissed while on this leave. Job security during parental leave matters especially to people planning a longer break from work to look after their child. Another common question is whether the child may attend a nursery during the leave — we look at parental leave and nursery or preschool in a separate post.
Polish labour law provides specific protective mechanisms for employees on parental leave, but this protection is not absolute. There are specific situations in which an employer may lawfully terminate an employment contract even with a person on parental leave. Knowing these rules is essential for both employees and employers.
Parental leave (urlop wychowawczy) can last up to 36 months and is available to an employee who has been employed for at least 6 months (Article 186 § 1 and § 2 of the Labour Code) – you do not have to use maternity leave or parental leave (urlop rodzicielski) first. During this period the employee does not perform work but remains employed. Taking parental leave is a right, not an obligation of the employee
Legal basis for job protection during parental leave
The rules on parental leave (urlop wychowawczy) and job protection during this period are set out in detail in the Labour Code (Kodeks pracy). The key provision is Article 186(8) § 1 of the Labour Code, which prohibits giving notice or terminating the employment contract in specific situations connected with parental leave. We handle leave applications, contracts and personnel files for companies that have outsourced their HR and payroll services to us.
Under this provision, the employer may not give notice or terminate the employment contract in the period from the day on which the eligible employee submits a request for parental leave until the day the leave ends. This protection also covers situations in which the employee requests a reduction of working time in connection with childcare – in that case it lasts 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 of the Labour Code).
Protection against dismissal begins as soon as the request for parental leave is submitted, not only when the leave actually starts. This also applies to requests for reduced working time to care for a child
The rules also contain a special provision for situations where the employee submits a request for parental leave or reduced working time well in advance. If the request is submitted earlier than 21 days before the planned start of the leave, the ban on giving notice or terminating the employment relationship only starts to apply 21 days before that date.
The aim of this rule is to give employees job security while they care for their child or prepare to do so. At the same time, the law takes into account the need to balance employee rights with the employer's interests.
Exceptions to protection against dismissal
Although the Labour Code protects employees on parental leave against dismissal, this protection is not absolute. Article 186(8) § 2 of the Labour Code lists specific cases in which the employer may lawfully terminate the employment contract of a person on parental leave. Separate rules apply after returning from parental leave (urlop rodzicielski) — they are covered in dismissal after returning from parental leave.
The first exception is the declaration of the employer's bankruptcy or the employer's liquidation. In such cases, the formal declaration of bankruptcy or the opening of the company's liquidation is a sufficient legal basis for terminating the employment relationship. This exception results from objective economic circumstances that prevent the employing entity from continuing to operate.
The declaration of the employer's bankruptcy or liquidation automatically makes it possible to terminate the employment contract of a person on parental leave. No additional grounds or justification are required beyond the formal opening of these procedures
The second important exception covers situations where there are grounds for terminating the employment contract without notice through the employee's fault. This exception refers to the grounds listed in Article 52 § 1 of the Labour Code, which allow the employment relationship to be terminated with immediate effect.
Grounds for termination without notice through the employee's fault
The employment contract of a person on parental leave can be terminated without notice in three main cases set out in the Labour Code.
First, the contract may be terminated for a serious breach of the employee's basic duties. The breach must be particularly serious and undermine the fundamental principles of the employment relationship. It is the employer who assesses how serious the breach is, but the assessment must be objectively justified.
Second, the contract may be terminated if the employee commits an offence during the employment that makes it impossible to continue employing them in their current position. In addition, the offence must be obvious or confirmed by a final court judgment.
An offence committed by the employee during the employment must make it impossible to continue employing them in their current position (Article 52 § 1 point 2 of the Labour Code) – it does not have to be committed at work, but it must be relevant to further employment in that position. Not every offence is a ground for termination without notice
Third, the contract may be terminated if the employee, through their own fault, loses the qualifications needed to work in their current position. This applies where the employee loses necessary licences, certificates, authorisations or other qualifications required for the job, and the loss is their own fault.
- Analyse the circumstances justifying termination of the contract
- Check whether the breach is serious and concerns basic duties
- Verify whether the offence makes further employment in the current position impossible
- Assess whether the loss of qualifications was the employee's fault
- Document all the circumstances justifying termination of the contract
Special legal situations concerning job protection
The Labour Code also contains a special rule for situations in which the request for parental leave is submitted after a legal step leading to termination of the employment contract has already been taken. Article 186(8) § 4 of the Labour Code provides that if the request is submitted after a step aimed at terminating the contract, the employment relationship ends on the date resulting from that earlier step.
The aim of this rule is to prevent situations in which an employee would try to avoid the effects of notice or termination by submitting a parental leave request afterwards. If either party gives notice of termination and the employee then submits a request for parental leave, the contract will still end in accordance with the earlier legal step.
The order of legal steps is crucial for whether protection against dismissal applies. A request for parental leave submitted after notice has been given does not restore job protection. The earlier legal step remains effective
Different scenarios are, however, possible, including the employer withdrawing the notice or the parties agreeing on new terms of employment. This provision only applies where the leave request is submitted after a step leading to termination of the contract has been taken.
Termination under the collective redundancy rules
A particularly important issue is whether the employment contract of a person on parental leave can be terminated as part of collective redundancies. This applies where the employer has at least 20 employees and is subject to the Act on special rules for terminating employment relationships for reasons not attributable to employees (the collective redundancy act).
The collective redundancy act provides for severance pay where the employment contract is terminated solely for reasons on the employer's side. In addition, these rules give special job protection to certain groups of employees, including people approaching retirement age, people on maternity leave and members of the board of a company trade union.
A manufacturing company with 150 employees found itself in financial difficulty and had to carry out collective redundancies affecting 30 people. Among those dismissed was a person on parental leave. Despite the protection under the Labour Code, the dismissal was carried out under the collective redundancy rules.
This follows directly from the collective redundancy act: when notice is given as part of collective redundancies, the rules on special protection against dismissal do not apply, except for the employees listed in Article 5(5) of the act (for example people approaching retirement age, pregnant employees, and employees from the day they request maternity, paternity or parental leave (urlop rodzicielski)). Employees on parental leave (urlop wychowawczy) are not on this list (Article 5(1) and (5) of the act). Case law of the Supreme Court (Sąd Najwyższy) is also of key importance. What rights a person dismissed in this situation has is explained in our guide on employee rights when given notice during parental leave.
In its resolution of 15 February 2006 (II PZP 13/05), the Supreme Court held that Article 10(1) and (2) of the act (dismissals for reasons not attributable to employees affecting fewer people than a collective redundancy) may be the basis for terminating the employment of an employee on parental leave. This also applies where the grounds provided for in the Labour Code are not met. For such an individual dismissal, the condition is that the company trade union does not raise an objection within 14 days (Article 10(2) of the act)
The Supreme Court's position means that the protection resulting from the parental leave rules is weaker than the protection for employees on maternity leave. In practice, people on parental leave (urlop wychowawczy) may be included in collective redundancies on the same terms as other employees.
Comparison of job protection for different groups of employees
An analysis of labour law shows different levels of job protection for different groups of employees using childcare-related rights. The strongest protection is given by the rules on maternity leave, which practically rule out dismissing an employee during that period.
| Type of leave | Level of protection | Exceptions to protection | Collective redundancies |
|---|---|---|---|
| Maternity leave | Very high | Bankruptcy, liquidation, fault (with trade union consent) | Special protection |
| Parental leave (urlop rodzicielski) | Very high | Bankruptcy, liquidation, fault (with trade union consent) | Special protection |
| Parental leave (urlop wychowawczy) | Medium | Bankruptcy, liquidation, fault | No protection |
| Reduced working time | Medium | Bankruptcy, liquidation, fault | No protection |
Employees on maternity leave and parental leave (urlop rodzicielski) (from the day the request is submitted) are also protected under the collective redundancy rules – the employer may only give them notice changing their existing terms of work and pay (Article 5(5) point 1 of the act), unless the dismissal is due to the employer's bankruptcy or liquidation. This protection does not apply to people on parental leave (urlop wychowawczy).
The differences in the level of protection result from the different nature of each type of leave and the purposes it serves. Maternity leave is more medical in nature and relates to the period directly after childbirth, whereas parental leave (urlop wychowawczy) is more social in nature and concerns a longer period of childcare.
Procedures and documentation relating to dismissal
If it becomes necessary to terminate the employment contract of a person on parental leave, the employer must take particular care with procedures and documentation. Every termination must be properly justified and documented to avoid allegations of breaching protective rules.
Where the basis for termination is the employer's bankruptcy or liquidation, the employer must present formal documents confirming that these procedures have been opened. This may be a court decision declaring bankruptcy, a shareholders' resolution to liquidate the company or other official documents.
The documentation justifying termination of the employment contract of a person on parental leave must be particularly precise and complete. Lack of proper justification may result in the dismissal being found unlawful and an obligation to reinstate the employee
Where the contract is terminated because of a serious breach of employee duties, the employer must gather evidence confirming the breach. This may include documents, witness statements, CCTV records or other evidence. It is particularly important to show that the breach was genuinely serious and undermined the fundamental principles of the employment relationship.
- Collect all documents confirming the grounds for termination
- Carry out an investigation that respects the employee's right to defend themselves
- Document all the circumstances justifying termination of the contract
- Check that the procedure complies with the Labour Code
- Prepare a written justification of the decision to terminate the contract
Consequences of unlawful dismissal
Terminating an employment contract in breach of the rules on job protection during parental leave may have serious legal consequences for the employer. An employee who has been unlawfully dismissed has the right to pursue claims before a labour court.
The employee's basic claim is to be reinstated on the previous terms. The court may rule that the termination is ineffective and order the employer to continue the employment. In addition, an employee who returns to work following reinstatement receives pay for the entire period without work, because termination of the contract was restricted by a special provision (Articles 47 and 57 § 2 of the Labour Code).
Instead of reinstatement, the employee may claim compensation – where notice was given, equal to pay for a period of 2 weeks to 3 months, but not less than pay for the notice period (Article 47(1) of the Labour Code), and where the contract was terminated without notice, equal to pay for the notice period (Article 58 of the Labour Code). If the dismissal breaches the ban on discrimination or the employee's personal rights, additional claims are also possible
The choice between reinstatement and compensation belongs to the employee. For an employee protected under Article 186(8) of the Labour Code, the court may not reject a claim for reinstatement as impossible or inappropriate and award compensation instead, unless reinstatement is impossible because of the employer's bankruptcy or liquidation (Article 45 § 3 and Article 56 § 2 of the Labour Code).
The employer may also be held liable for breaching labour law by the PIP (National Labour Inspectorate). Labour inspectors may impose fines or refer the case to court if they find serious breaches of protective rules.
Practical aspects of job protection
In practice, employees planning to take parental leave should make sure their request is properly documented and keep proof that it was submitted. The request is submitted on paper or electronically at least 21 days before the start of the leave (Article 186 § 7 of the Labour Code) – it is worth keeping confirmation of receipt or a record of sending it in an electronic system.
It is also important to keep copies of all documents relating to parental leave, including correspondence with the employer, confirmations that requests were submitted and any decisions by the employer. This documentation may prove crucial in disputes about whether the termination was lawful.
An employee submitted a request for 12 months of parental leave and kept a copy of the request with the employer's confirmation of receipt. Three months later, the employer gave her notice, citing financial difficulties. Thanks to the documentation she had kept, the employee was able to pursue her rights in court and was reinstated.
Employers, in turn, should keep precise records of all cases of terminating the employment contracts of people on parental leave. Every decision to terminate a contract must be properly justified and supported by evidence that the statutory grounds are met.
Particular care is needed with collective redundancies that include people on parental leave. Although Supreme Court case law allows such dismissals, the employer must follow all the procedures provided for in the collective redundancy act and document the objective reasons for reducing the workforce.
