(Act I of 2012 on the Labor Code, Section 59, 60, 65, 66)
In the event of pregnancy, the employer has the right to terminate the employment relationship, modify the job description, and take other employer measures only in exceptional cases. However, due to the hiearchial nature of employment relationships, many find themselves facing unexpected employer actions following the announcement of their pregnancy, which are often misleading, deceptive, and completely unjustifiable from a labor law perspective. This article aims to dispel any misconceptions.
During pregnancy and maternity leave, the employment relationship cannot be terminated by ordinary notice.
Mutual agreement is the simplest and most amicable way to terminate an employment relationship, as the parties are free to agree on the terms of termination (e.g., date, benefits). However, the employer also abuses this if they use pressure, coercion or threats to persuade an unsuspecting employee to terminate their employment by mutual agreement during their pregnancy. The employee must be aware of this in all cases, because if she signs the statement, the legal effects of termination of employment will take effect and the termination will be lawful.
It is important to emphasize that termination by notice is only lawful if it meets the strict criteria for termination without notice. Termination without notice is justified if the pr
egnant employee intentionally or through gross negligence commits a serious breach of a fundamental obligation, or if she engages in conduct that makes the continuation of the employment relationship impossible. This type of termination is only applicable in exceptional cases, and the above conditions must not be interpreted broadly. Furthermore, the right to
terminate is also limited in time, as it must take place within 15 days of the occurrence of the reason for termination.
The circumstances of termination without notice cannot be expanded or restricted by agreement between the parties or by collective agreement. At most, they may list examples of breaches of employment obligations that may serve as grounds for termination without notice. It is important to note that, according to the provisions of Labor Code, in the event of culpable breach of obligations arising from the employment relationship, only those legal consequences may be applied that are proportionate to the severity of the breach.
Examples: Based on the above, termination without notice is not considered lawful if the employer includes a provision in the employment contract stating that „any breach of any clause of the employment contract shall be considered a serious breach of duty or ground for immediate termination”.
Similarly, an unannounced absence due to sudden illness does not qualify as grounds for termination without notice. However, it is important to note that the employee must inform the employer of their absence from work and the reason for it as soon as possible. This is because an unexcused absence, especially if it lasts several days, may constitute valid grounds for termination without notice.
When amending an e
mployment contract, the elements of the contract, including the job description and salary, may be freely changed by mutual agreement. When amending an employment contract, it is important to consider carefully whether the amendment is in the best interests of the pregnant employee, despite any pressure, coercion, or threats from the employer, as any amendment signed by both parties is valid and effective. While the employer cannot unilaterally amend the employment contract, they can enforce their will by mutual agreement.
If the employee’s health condition requires a change in the terms and conditions of employment, this should be done within the framework of the existing job description, or if the job cannot be performed under these conditions and a medical opinion confirms that the employee cannot be employed in their job, then a change in the job description is necessary. It is important to emphasize that in both cases, the parties must agree to amend the employment contract. Even in such cases, the employer cannot unilaterally amend the employment contract.
In such cases, the employee will take on a new position and will be entitled to a salary commensurate with the new position, but this may not be less than the basic salary specified in the employment contract. In cases where it is not possible to employ the employee in another position that is appropriate for their state of health (e.g. pregnancy), they must be exempted from work. The employee is entitled to their basic salary for the duration of the exemption.
After returning from maternity leave (up to 24 weeks), the employer shall make an offer to the employee to adjust their salary. In doing so, the average annual wage increase implemented by the employer in the meantime shall be taken as a basis for employees in the same job category as the employee. If no such comparable employees exist, the overall average annual salary increase implemented by the employer during that period shall serve as the basis for the adjustment.
Based on all the above, the employer’s actions are strictly limited during pregnancy and maternity leave. Salary reduction, change of position, or termination of employment is only permitted under the specific circumstances mentioned previously.
It follows that the employer may not unilaterally or arbitrarily make decisions regarding the employment of a pregnant employee or one on maternity leave. If such actions occur it is advisable to consult a lawyer in order to fully understand one’s rights and available legal options.
This article serves as a general informational guide based on the provisions of the Labor Code and current judicial practice. It does not constitute a legal opinion or formal legal advice, and it is not binding in relation to any individual case. A thorough understanding of the specific circumstances of an individual case is essential for providing a proper legal assessment.
stances of an individual case is essential for providing a proper legal assessment.