The European Court of Justice (ECJ) has assessed that a public servant employed in a trial position as head of department should have been offered the same or a similar position when returning from parental leave, even though the probationary period had expired.

A German public servant had been employed in a position for a two-year probationary period for the purpose of assessing whether she matched the position on a permanent basis.

However, she never started in the position as she was on sick leave in connection with her pregnancy and then on maternity leave and parental leave. Almost four years passed before she returned to the labour market. In the meantime, another employee had been offered the position under German law, and it was not possible for the public servant to obtain a new probationary position.

The employee claimed that she had been entitled to parental leave under Directive 2010/18 and the revised framework agreement, and that she was entitled to return to the same position or to be offered a similar position if it was not possible to return to the same position.


The ECJ ruled that the provisions on leave prevented German legislation according to which she could not return to the position she held prior to the parental leave. Also, the probationary position was - for the purpose of obtaining permanent employment and a higher salary - covered by the rights enjoyed by the public servant prior to the leave.

The outcome would not be different had the German employer claimed that it would have imposed unnecessary costs on the employer to hold the position until the employee returned.  

This judgment clearly states that the employer must go to great lengths to ensure that parents can return to the same or a similar position after lawful leave.