Last-minute Protection Against Dismissal? New Labor Court Decision on Abuse of Rights in the Context of Family Care Leave

Employers are familiar with special protection against dismissal in many situations: pregnancy, parental leave, severe disability, works council membership or — particularly in times of upcoming works council elections — the protection afforded to certain election initiators, candidates and election committees. Less commonly in focus, however, is another protective mechanism of considerable practical relevance: special protection against dismissal in connection with care leave and family care leave. Even where the statutory requirements are met, special protection against dismissal may, by way of exception, be denied on grounds of abuse of rights, as a recent decision of the Kaiserslautern Labor Court illustrates.

Protection Against Dismissal Under the Family Care Leave Act

Special protection against dismissal under the German Family Care Leave Act (Familienpflegezeitgesetz – FPfZG) in particular can become highly relevant in separation scenarios. Employees may reduce their working time for up to 24 months if they care for close relatives in a domestic environment. Pursuant to Section 2(3) FPfZG, the special protection against dismissal under Section 5 of the German Care Leave Act (Pflegezeitgesetz – PflegeZG) applies. Accordingly, as a general rule, the employer may not terminate the employment relationship from the time the leave is announced — but no earlier than twelve weeks before the announced start date — until the end of the family care leave.

In practice, this protection becomes particularly relevant where family care leave is announced only once a separation or dismissal is already specifically being contemplated. Employers are then faced with the difficult question of whether the employee is legitimately exercising a statutory protection right or attempting to obtain special protection against dismissal at short notice in order to pre-empt a dismissal that has already been indicated. In the latter case, special protection against dismissal may be denied on grounds of abuse of rights.

Abuse of Rights: Recognized in Principle, but Rarely Established in Practice

Previous case law has recognized that an abuse of rights precludes special protection against dismissal under Section 5 PflegeZG. The threshold, however, is high. The employer must provide full proof of the facts giving rise to the alleged abuse of rights. Since the employer has no direct knowledge of the alleged family care situation, a staged burden of pleading and proof applies. In the first step, employers must present specific facts that give rise to doubts as to the bona fide exercise of the right (Thuringia Higher Labor Court, judgment of October 2, 2014 – 6 Sa 345/13). The employee must then dispel those doubts by submitting appropriate factual evidence. The employer must subsequently rebut the employee’s submissions — something that, in practice, will rarely be achievable (for example, Hamm Higher Labor Court, judgment of December 28, 2016 – 6 SaGa 17/16; Cologne Labor Court, judgment of November 18, 2025 – 16 Ca 6887/24). By contrast, the Kaiserslautern Labor Court has — as far as can be seen, for the first time — found an abuse of rights in the context of announced care leave or family care leave.

Decision of the Kaiserslautern Labor Court of March 18, 2026 – 2 Ca 1027/25

The Kaiserslautern Labor Court had to decide a case in which an employee was informed during a separation meeting that his position would be eliminated. The employer offered an amicable termination and, at the same time, made clear that otherwise a dismissal for operational reasons would be issued. Approximately three days later, the employee announced family care leave for the full duration of 24 months and sought to reduce his working time by approximately six hours per week for that purpose. The court assessed the announcement of family care leave as an abuse of rights.

In doing so, it relied on an overall assessment of several indicators:

The close temporal proximity to the separation meeting carried particular weight. The court regarded this as a significant indication that the employee’s primary objective was not the provision of care, but rather the acquisition of special protection against dismissal.
In addition, the employee chose the start date of the family care leave in such a way that the maximum twelve-week period of advance protection against dismissal before the start of the care leave was almost fully exhausted. The court also considered this a further indication of an abuse of rights.
In this context, it also remained unclear how care was to be ensured until the start of the family care leave. In the court’s view, general references to vacation stays or family support were insufficient as long as the specific periods and the organization of care in the interim remained open.
The merely minor reduction in working time by six hours per week was also relevant. Such a reduction may, in an individual case, be justified. In combination with the other circumstances, however, the court considered it to give rise to doubts as to the seriousness of the asserted intention to provide care.
Finally, the court took into account that the employee intended to make full use of the maximum 24-month duration of family care leave. By claiming the maximum permissible period of family care leave, the claimant deprived himself of the ability to respond to any changed care needs in the future. The court left open whether this alone would constitute a sufficient indicator. In the overall assessment, however, it fit the picture of an attempt to make the broadest possible use of special protection against dismissal.
Moreover, the alleged care situation was not explained in concrete terms. This was particularly relevant because the person requiring care had only been assigned care level 1.

The Decisive Point: Plausibility Where Indicators of Abuse Exist

The real practical value of the decision lies in the question of what employees must submit where such indicators of abuse exist.

The court made clear that, as a general rule, an employee is not required to disclose to the employer in detail how the care is organized. However, where there are specific indications of an abuse of rights, a general reference to care needs or family support is no longer sufficient. In such circumstances, the employee must at least present facts from which an actual intention to provide care appears plausible.

That is precisely what was missing in the case decided. The employee was unable to sufficiently explain the indicators presented by the employer, with the result that, in the overall assessment, the court found an abuse of rights.

Conclusion

The German Family Care Leave Act serves an important social purpose. Employees should be able to care for close relatives without having to fear employment-law disadvantages as a result. The decision nevertheless shows that special protection against dismissal is not without limits. If family care leave is asserted immediately after a specifically announced separation and further circumstances speak against a genuine intention to provide care, the objection of abuse of rights may succeed. Employers are therefore well advised not to accept every reduction in working time without further scrutiny.