A practical guide to parental leave (Part III)
Part III: After parental leave
This article is the last in a series of three articles looking at parental leave from a practical point of view. In this article, we will consider the situation of employees after parental leave. Please note that, in principle, parental leave ends at the end of the period chosen by the employee, subject to the employer’s agreement (4/6/8/12/20 months). For specific cases of early termination of parental leave, please refer to the last section of our previous article.
1. Reemployment guarantee (article L.234-47 (9) (1) of the Luxembourg Labour Code): the employer is required to keep the employee’s post open for the duration of the parental leave. Failing this, when the employee returns, the employer must guarantee the employee a similar post that is suited to their qualifications and offers an equivalent salary (this also applies for variable pay and bonus opportunities). The employer can of course offer the employee a better position.
2. The maintenance of rights during parental leave (article L.234-47 (9) (2) of the Luxembourg Labour Code): during parental leave, employees retain all rights held prior to the start of parental leave (parking space, supplementary health insurance, etc.). Although the parental leave period is a suspension of the employment contract, it is included when calculating the employee’s length of service and associated rights (right to maternity leave/unemployment benefits, calculation of notice periods, etc.).
3. Employees who resign at the end of parental leave (article L.234.47 (13) of the Luxembourg Labour Code):
- Principle: please note that employees who terminate their parental leave early by resigning during parental leave have their parental leave cancelled and are required to reimburse any allowance already received.
Consequently, employees wishing to resign and retain their parental leave are required to attend work on the first day after the end of their parental leave to notify their employer of their resignation (while complying with statutory notice periods).
As it is the employer’s decision alone whether to release the employee from working out the notice period, employees wishing to resign subsequent to their parental leave may be required to work until the end of their notice period.
- Non-return to work following parental leave: this is an extraordinary procedure that allows employees not to return to work following parental leave.
To do so, they must notify their employer of their intention not to return to work during parental leave, subject to the same notice period as for resignation. As this notification does not constitute resignation, the employee must still give notice of their resignation on the first day after the end of their parental leave. This procedure allows the employee not to work out their notice period.
The Luxembourg Labour Code does not specify whether this exemption functions in the same way as the exemption from working the notice period at the employer’s discretion. Nevertheless, logic dictates that this would be the case and the employee should be able to commence a new professional activity (as an employee or self-employed worker) on the day after they give notice of resignation. They must nonetheless inform their former employer of this; their former employer may be required to top up the employee’s salary for the theoretical remainder of the notice period if the new activity is less lucrative than the previous one.
4. Arranging working conditions for the employee’s return to work (article L.234-47 (11) of the Luxembourg Labour Code): upon their return from parental leave, employees are entitled to a meeting with their employer in order to request certain arrangements for their working time and/or working pattern for the year following their return to work. The employer may refuse the employee’s request, but must justify such refusal. Failure to provide justification or provision of an improper justification shall entitle the employee to claim damages.
In practice, ALEBA recommends that employees confirm their request in writing (by email or registered letter) in order to ensure they have proof of their request.
By Matthias Lindauer, Legal Advisor