Quick Hits
- Under German employment law, employees requesting parental leave are, in principle, bound by that request.
- To be eligible for parental leave, an employee must generally have a child in the household who requires care. Separation or moving out does not affect the parental leave that has already been requested—the only legal exception is the death of the child.
- An employer may be required to consent to the employee not commencing parental leave, but only in cases of “particular hardship” (besondere Härte), which does not include when an employee does not receive parental allowance (Elterngeld).
The Case—Separation from the Family Shortly Before the Start of Parental Leave
An employee requested parental leave for one year. Before the leave began, he separated from the child’s mother and moved out of the shared apartment. The child remained with the mother.
A few days before the planned start of the parental leave, he requested his employer to end the leave and continue working . His reasoning: without living with the child, the statutory requirements for parental leave were no longer met. In addition, he was receiving neither governmental parental allowance nor unemployment benefits (Arbeitslosengeld), which, he argued, constituted a particular hardship justifying early termination of the parental leave.
The employer refused. It had already hired a replacement for the period of the parental leave. This could not easily be reversed.
The Decision—A Request Is a Request
The Düsseldorf Regional Labor Court(Landesarbeitsgericht (LAG))(judgment of August 26, 2025 – Ref. No. 3 SLa 136/25) held that the parental leave had ended automatically as soon as the father no longer lived with the child. The requirements for parental leave were no longer met. The BAG disagreed and granted the employer’s appeal on points of law.
Employees are, in principle, bound by their parental leave request, the BAG said. This binding effect protects the employer, which has adjusted to the absence and arranged for a replacement. Parental leave does require living with a child in one household. However, if requirements cease to apply at a later point, this does not affect the parental leave. The statute provides for automatic ending only in the event of the child’s death.
If employees wish to end parental leave early or not to take it at all, they generally require the employer’s consent. There are two exceptions: the birth of another child and cases of particular hardship. Particular hardship exists, for example, if a parent or a child of the employee becomes seriously ill, becomes severely disabled, or dies, or if the parents’ economic existence is considerably endangered. In these cases, the employer may object only for urgent operational reasons, and only in writing within four weeks.
The BAG did not find a case of particular hardship here. The fact that the employee did not receive a governmental parental allowance because he did not live with the child is not sufficient in itself. He did not demonstrate that he could no longer support himself or provide for the child’s maintenance.
Planning Certainty for Employers
The decision gives employers planning certainty: Employers that hire a substitute following a parental leave request need not fear that the later loss of eligibility for parental leave, for example due to separation and moving out, will thwart this planning. If employees decide not to commence parental leave or wish to end it early, they generally require the employer’s consent. Before refusing, employers may want to examine whether a case of particular hardship exists. If there is particular hardship, the employer may refuse the early termination or non-commencement only within four weeks for urgent operational reasons, and only in the statutory written form (i.e. wet ink signature). If the employer misses this deadline or fails to observe this form, the termination of the parental leave becomes effective. However, the BAG ruling makes clear that the mere loss of the entitlement to the governmental parental allowance as a result of moving out does not constitute particular hardship. The decision thus underscores that the parental leave request is, in principle, binding and that withdrawal from it remains the exception.
Lena Beyer, LL.M. (Tokyo) is an associate in the Berlin office of Ogletree Deakins.
Zeynep Yildirim, a law clerk in the Berlin office of Ogletree Deakins, contributed to this article.
Ogletree Deakins’ Berlin office will continue to monitor developments and will post updates on the Cross-Border, Germany, and Leaves of Absence blogs as additional information becomes available.
