Germany: According to the Federal Labour Court parental leave remains binding even if the eligibility requirements cease to be met before it begins

In February 2024, a truck washer who had worked for a logistics company since 2011 requested one year of parental leave beginning in May 2024. His employer confirmed the request. Before the parental leave began, the father separated from the mother and moved out. The child remained with her. Shortly before the planned start of the parental leave, the father stated that he wished to continue working because one of the requirements for parental leave, living in the same household as the child, was no longer met. The employer refused because it had already hired a replacement. The father was not permitted to return to his workplace until after the parental leave period had ended.

The Labour Court ruled in favour of the father. The Regional Labour Court also found that the parental leave had ended before it had even begun.

The Federal Labour Court ruled in favour of the employer and dismissed the claim in its entirety (Federal Labour Court, judgment of 6 October 2026 – 9 AZR 11/26).

Parental leave that has been validly requested does not end automatically if the eligibility requirements cease to be met before it begins. In principle, the employee is bound by the request for parental leave. This protects the employer, which may already have made arrangements for the period during which the employee will be released from work. A subsequent loss of the requirements for entitlement to parental leave does not affect the parental leave. Section 16(4) of the Federal Parental Allowance and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz, BEEG) provides for an exception only where the child to be cared for dies.

If an employee wishes to end parental leave early, they generally require the employer’s consent (section 16(3), sentence 1 BEEG). Where a case of particular hardship exists, that consent may first have to be obtained through court proceedings. The Federal Labour Court clarified that particular hardship cannot be assumed solely because the employee is not entitled to parental allowance as they no longer live with the child.

What does this mean for employers?

• Planning certainty: As a general rule, you can rely on a confirmed request for parental leave and make binding arrangements for replacement staff
• No automatic risk of back-pay claims: An employee who wishes to return early without the employer’s consent is generally not entitled to employment or remuneration for the period of parental leave originally requested
• Document the decision carefully: Review each request to return individually and provide written reasons for any refusal without delay. The courts examined closely whether the refusal complied with the applicable formal requirements and deadlines
• Offer alternatives: The employer argued that it would have approved employment with another employer during the parental leave period. Offers of this kind strengthen your position
• Special protection against dismissal: Once parental leave begins, the special protection against dismissal under section 18 BEEG also remains in force

What does this mean for employees?

A request for parental leave is binding. By submitting it, the employee commits to the requested period. This also applies if their personal circumstances change and the eligibility requirements for parental leave cease to be met before it begins. An early return is possible only with the employer’s consent, which may have to be obtained through court proceedings in advance, or in the special cases provided for by law. Even then, compelling operational reasons may prevent an early return.