Can I apply for unpaid leave after parental leave?

Is an employer obliged to provide an employee with unpaid leave after the end of parental leave to care for a child up to the age of four? What circumstances should an employer take into account when considering whether to grant an employee's request for unpaid leave after parental leave?

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Parental leave and parental allowance

Parental leave is considered by Act No. 262/2006 Coll., the Labour Code (hereinafter referred to as the "Labour Code") as one of the important personal obstacles to work, for which the employer is obliged under Section 196 of the Labour Code to grant leave of absence to the employee at his/her request, without entitlement to wage compensation. Parental leave is granted to the mother after maternity leave or to the father after the birth of the child. The length of parental leave is limited by the Labour Code to three years of age of the child. Parental leave may also be taken in stages, while still respecting the fact that parental leave may only be taken up to three years of age of the child[1].

During parental leave, material security is provided from the state social support system and is governed by Act No. 117/1995 Coll., on State Social Support (hereinafter referred to as the "Act on State Social Support"). Pursuant to Article 30(1) of the Act on State Social Support[2], a parent is entitled to parental allowance until the child is four years old at the latest. In total, the parent is paid a maximum amount of CZK 220,000 for the period of parental allowance, regardless of the duration of the allowance.

Unpaid leave after the end of parental leave

As the parental allowance can be taken for one year longer than the parental leave, the employer may find that the employee requests an extension of the parental leave until the child reaches the age of four after the child reaches the age of three. Given the statutory maximum length of parental leave, this is in effect a request for unpaid leave.

However, the employer does not have to grant the employee's request for unpaid leave until the child reaches the age of four and may ask the employee to either start work or terminate the employment relationship after the end of the parental leave. If the employee does not start work after the end of the parental leave and has unexcused absences from the employer, the employee runs the risk of unilateral termination of the employment relationship by the employer for breach of employment obligations. However, in the event of such termination, the employer should be cautious and take into account the reason for the employee's failure to start work. According to the case law of the Supreme Court[3], 'If an employee does not start work after the end of her next maternity leave[4] only because she is unable to place her child in a pre-school (nursery school or special kindergarten) and cannot ensure proper care of the child in any other way, in particular through another person, and if she has duly informed her employer of this, it is beyond doubt that she was unable to start work after the end of her maternity leave for important reasons and that she is therefore entitled to be granted leave. Therefore, her conduct cannot be regarded as a culpable breach of her employment obligations (breach of work discipline) and cannot constitute grounds for termination of her employment."

If the employer accepts the request for unpaid leave, the employer is not obliged to guarantee the employee a job upon her return from unpaid leave, and the employee is not protected from unilateral termination of the employment relationship by the employer during the period of unpaid leave, as when she takes parental leave.

From the employer's point of view, it should be emphasised that if the employer knows at the time of deciding whether or not to grant unpaid leave to an employee up to the age of four years that there will be no job for the employee after the end of the leave, for example due to redundancy, and plans to terminate the employment relationship with the employee after the end of the unpaid leave for this reason, the employee will be entitled to statutory severance pay under Section 67 of the Labour Code. If the employer knows that he/she does not want to or cannot continue to keep the employee's job for the duration of the unpaid leave, it is preferable to refuse the request for unpaid leave from the point of view of the future cost of any severance pay.

Conclusion

An employer is obliged to grant parental leave up to a maximum of three years of age of the child in the employee's care. The maximum period of parental leave does not coincide with the maximum period for which parental allowance can be taken. If an employee requests unpaid leave to care for a child after the end of parental leave, the employer may or may not grant the request. When considering a request for unpaid leave, the employer should always give due consideration to all the circumstances in which the employee is requesting unpaid leave, not only on the employee's side but also on its side.

[1] Bělina, M., Drápal, L. et al. Commentary. 2nd edition. Prague: C. H. Beck, 2015, pp. 877-879.

[2] Section 30(1) of Act No. 117/1995 Coll., on State Social Support: 'A parent who personally cares for a child who is the youngest in the family for a whole calendar month on a full-time and proper basis shall be entitled to parental allowance up to the age of 4 years of that child, and no longer than until the total amount of CZK 220,000 has been paid in parental allowance for the care of the same youngest child in the family, unless otherwise specified. If the youngest child in the family is two or more children born at the same time (hereinafter referred to as "multiple children"), that parent is entitled to 1.5 times the amount of CZK 220 000."

[3] Judgment of the Supreme Court, Case No. 21 Cdo 4411/2007 of 10 October 2008.

[4] The term "additional maternity leave" was used by Act No. 65/1965 Coll., Labour Code, as amended until 31 December 2000, and is understood to mean parental leave within the meaning of Act No. 262/2006 Coll., Labour Code, now in force.