The protection of employees returning from maternity leave has always been a significant issue, where social considerations and employment law questions inevitably overlap. As in so many areas, effective legislation must balance the different interests of the parties involved. However, the experiences of many practitioners in this field reveal problematic aspects of the legal regime which tend to be ignored or concealed when they should be addressed and resolved.

Maternity protection has recently re-emerged as a hot topic, partly because a new comprehensive labour act concept has sought to change the rules. The proposed changes have mostly been withdrawn. However, the problems of eligibility under the existing regulation should be considered objectively.

Under the terms of the Labour Code that are in force at present, an employer cannot terminate a female employee (using the ordinary termination procedure) while she is on unpaid leave to take care of her child at home; nor can the employee be terminated while caring for the child until his or her third birthday, even if the employee is not on unpaid leave.

The December 2009 amendment to the code, which came into force on May 1 2010, extended the employment protection for returning mothers until their child reaches the age of three. However, it failed to connect this regulation to the legally protectable social interest in caring for a child. Therefore, the legislation contradicts not only international practice, but also the basic principles of the code itself, since it protects a group of full-time employees with regard to personal family status which is unrelated to their employment.

The protection now in effect is the result of a process which started in 2006. The legislation before 2006 was consistent with the legal concepts surrounding labour protection, in that it prohibited the redundancy of employees who were absent from work due to illness or accident, for the performance of military service or in order to care for their child or children. Thus, parents were protected while they stayed at home with their child or took part-time employment, until the child's third birthday.

In 2006 the criterion for protection was softened with the introduction of a three-year protection period for parents working full time. The protection was linked to the receipt of state childcare allowance, which parents could claim even if they had already worked full time from the child's second birthday. This regulation made little practical sense, but it was possible to override it in 2009, when the legislation was changed and maternity protection became completely independent of childcare. Consequently, one parent could return to full-time work immediately after the birth of the child, but enjoyed protection for three years.

Compared to the employment protection available in certain other EU member states - notably Belgium, France, the Czech Republic, the United Kingdom and Austria - the regime in Hungary needs rationalisation. Most EU countries provide protection for parents for the period in which they are caring for their children, for a period of between 16 weeks and two years. The regulations in EU states are clear: parents are protected from termination only while absent from work and for a short period after returning. Austrian employment law grants the longest protection period, but even in Austria the termination protection expires when the mother returns to work. Moreover, a court may approve the termination of an employee who is at home caring for a child of over 12 months if the employer is unable to retain the employee for business reasons. This is in contrast to the Hungarian regime, which ensures termination protection for either parent until the child is three, even if the parent works full time - hence, the connection is lost with the legally protectable social interest in supporting the ability to provide childcare.

In light of the above, the proposed amendments to the rules are welcome and are expected to reduce unnecessary conflicts between employers, active employees and protected employees.

Unfortunately, practice shows that until the protection period expires, certain parents may formally declare their intention to return to their role while actually having no intention of returning to work. This is more frequent when the employer undergoes a reorganisation or a mass redundancy is declared. As some employees in this situation do not expect to return to work and are protected against redundancy, the employer has no option other than to reach agreement with returning employees on termination by mutual consent and to pay a considerable amount (eg, the remuneration for the remainder of the three-year period). Active, non-protected employees may react badly to what they see as an unfair regulation. Unfortunately, where a flaw in legislation presents an opportunity to abuse or misuse rights, there are likely to be individuals who will act in bad faith and exploit the problem.

The legislature should take account of the fact that the existing regulation does not comply with international practice or the conceptual aim of protection under the code. Fair and reasonable legislation would better serve the interests of both the labour market and working families. The concept of protection from termination should also be reconsidered, in terms of both substance and extent. A compromise could be reached by maintaining protection until the child's third birthday, but only if the parent is absent from work and is actually taking care of the child at home. If the employee returns to work, no such protection is justified in this regard.

The approach to the issue in the new code appears to be more reasonable and more consistent with the EU position, as protection will last until the end of maternity leave. This change will cure the problems of the past few years caused by unreasonable protection.

For further information on this topic please contact Marianna Csabai at CLV Partners Law Firm by telephone (+36 1 488 7008), fax (+36 1 488 7009) or email ([email protected]).