Уволнение по време на отпуск: кога е възможно?

Many employees believe that while they are on leave, sick leave or another type of break, the employer has no right to terminate their employment contract. However, leave in itself does not block dismissal. It is possible, but in certain cases the law provides special protection to the employee – the so-called preliminary protection against dismissal, regulated in the Labour Code.

What is “preliminary protection”?

The Labour Code (“LC”) introduces protection for the employee - preliminary protection under Article 333. This means that if an employee has already started using their authorised leave, the employer cannot simply dismiss them. Before that, the employer must request and obtain explicit written permission from the Labour Inspectorate. Case law also accepts that, for the protection to arise, authorised leave is required as of the date of dismissal, and the employee must have actually started using it as of that date. In other words, if, despite the authorised leave, the employee goes to work, the protection for that day falls away.

When does preliminary protection apply?

The protection does not apply to all types of dismissals. The employer must request permission from the Labour Inspectorate only in cases specifically determined by law, the most common of which are:

In the event of staff redundancy or closure of part of the enterprise;
In the event of a reduction in the volume of work;
Where the employer considers that the employee does not possess the necessary qualities to perform their work effectively;
In the event of disciplinary dismissal (the most severe sanction for the employee).

If the dismissal is carried out on any of these grounds without the prior consent of the Labour Inspectorate, it is unlawful. In a subsequent court dispute, the court may revoke the dismissal precisely because of non-compliance with this procedure, without it being necessary to examine the dispute on the merits.

When does the protection not apply?

There are exceptions in which preliminary protection does not apply. Upon termination of the employment contract on a ground other than those listed in Article 333, paragraph 1 of the LC, you do not benefit from protection against dismissal, i.e. prior permission from the Labour Inspectorate is not required.

These exceptions are::

By mutual consent. If both parties agree to terminate the contract, there is no dismissal and, accordingly, no need for protection;
Against compensation. If the employer proposes termination of the contract against payment of compensation (по чл. 331 КТ) и служителят приеме, отново е налице съгласие;
In the case of specific contractsPreliminary protection does not apply to contracts for additional work (the so-called “second employment contract”) and to internship contracts. They may be terminated only with 15 days’ notice.

And what happens if you are on pregnancy and childbirth leave?

This is the “strongest” protection provided by the LC. An employee who uses pregnancy and childbirth leave under Article 163 of the Labour Code may be dismissed only in the event of the complete closure of the enterprise. In this case, prior permission from the Labour Inspectorate is not required.

Does preliminary protection apply to all employees?

No. The protection applies to employment relationships arising on the basis of an employment contract or a competition.

The protection DOES NOT apply::

to elected positions;
upon termination of employment contracts for additional work under Articles 110, 111 and 114, paragraph 1 LC;
to internship contracts on the basis of Article 334 LC.

Therefore, when assessing whether a specific employee is protected, it is not sufficient to establish only that they are currently on leave. Both the type of employment relationship and the ground on which the employer intends to terminate it are relevant.

In summary - can you be dismissed while on leave?

Yes, it is possible. The mere fact that you are on leave does not automatically mean that your employment contract cannot be terminated - subject to certain conditions being met. The key requirement for you to benefit from preliminary protectionprotection is that you have actually started using the leave at the time of dismissal and that the dismissal is on certain statutory grounds. In such a case, the employer must obtain prior permission from the Labour Inspectorate in order to dismiss you. Breach of this requirement results in the unlawfulness of the dismissal.

The team of KGK Law Firm has extensive experience in the field of labour law and in protecting both employers and employees upon termination of employment relationships. If you have questions regarding the lawfulness of a dismissal, the applicable preliminary protection or a specific procedure for termination of an employment contract, you can contact us.