One of the most rigorous and, in practice, most consequential is the special protection against dismissal for pregnant employees.

Even a formal error can render a dismissal invalid and have significant legal and financial consequences. This article highlights the key provisions of Section 17 of the Maternity Protection Act (MuSchG) and offers you sound guidance on how to avoid pitfalls.

Summary

The protection against dismissal for pregnant employees, standardized in Section 17 of the Maternity Protection Act (MuSchG), represents an almost absolute prohibition of dismissal. It protects the employee from the beginning of pregnancy until four months after childbirth against any dismissal by the employer—whether ordinary or extraordinary. The employer's knowledge is decisive, whereby the employee can render a dismissal invalid by notifying the employer within two weeks. Only in narrowly defined exceptional cases can the competent authority declare a dismissal permissible at the employer's request. The hurdles for this are extremely high. Fixed-term contracts, on the other hand, expire as normal. Any termination without official approval is void, but must be challenged in court by the employee within three weeks.

1. Legal basis and scope of the absolute prohibition of dismissal

The legal dispute over the dismissal of a pregnant employee essentially begins and ends with a single, but extremely powerful provision.

• Key provision: Section 17 of the Maternity Protection Act (MuSchG)
  It is unlawful to dismiss a woman during her pregnancy and up to four months after giving birth. This prohibition is designed as an absolute prohibition on dismissal. It severely restricts your right to dismiss employees as an employer and allows only a few narrowly defined exceptions.
• Personal scope
  The protection afforded by Section 17 MuSchG covers not only full-time and part-time employees, but also all persons protected under the MuSchG. These include in particular:
  • Trainees
  • Home workers
  • Persons similar to employees
  • Women in vocational training
  The protection also extends to the period up to four months after a miscarriage after the twelfth week of pregnancy.
• Material scope
  The law does not differentiate between different types of termination. The prohibition covers all forms of termination by the employer. This includes:
  • Ordinary termination with notice (for operational, personal, or behavioral reasons).
  • Extraordinary termination without notice for good cause in accordance with Section 626 of the German Civil Code (BGB).
  • Termination for change, which aims to modify the working conditions.
• Temporal scope
  The protective shield of the law covers a clearly defined period. It begins with the onset of pregnancy (legally: with conception) and generally ends four months after childbirth. This period is extended in the case of parental leave in accordance with the provisions of the Federal Parental Allowance and Parental Leave Act (BEEG).

2. Prerequisites for protection: The employer's knowledge

A key factor in the effectiveness of the protection is your knowledge as an employer of the circumstances giving rise to the protection.

• Knowledge at the time of termination
  The prohibition of termination primarily applies if you, as the employer, were aware of the pregnancy or recent childbirth at the time the notice of termination was received. This knowledge can be gained through an informal notification from the employee.
• Subsequent notification remedies lack of knowledge
  If you terminate the employment relationship without knowledge of the pregnancy, the termination is initially ineffective. However, the termination is still ineffective if the employee informs you of the pregnancy within two weeks of receiving the notice of termination. This period is a material limitation period.
• Failure to meet the two-week deadline
  The law protects the employee even if she fails to meet this two-week deadline. The deadline is not binding if it is missed for reasons beyond the woman's control (e.g., ignorance of her own pregnancy, hospitalization) and the notification is made immediately after the obstacle has been removed. The hurdles for you as an employer to prove culpable delay are considerable in court practice.
• Right to proof
  You do not have to accept a mere claim of pregnancy without verification. As an employer, you have the right to request proof from the employee. According to Section 15 (2) MuSchG, she must submit a medical certificate or a certificate from a midwife at your request. You bear the costs for this.

3. The exception: Declaration of termination as permissible by the authorities

The absolute prohibition of termination is not without exception. In very rare cases, termination may be permissible, but this requires a prior administrative procedure.

• Approval requirement by the highest state authority
  According to Section 17 (2) MuSchG, the highest state authority responsible for occupational safety (or the agency designated by it, e.g., the trade supervisory office or the occupational safety office) may, in exceptional cases, declare the termination admissible.
• Formal application requirement
  This step is essential for effective termination: as an employer, you must apply in writing for a declaration of admissibility before giving notice of termination. Approval obtained retrospectively does not remedy a termination that has already been declared. Termination may only be declared after the positive decision of the authority has been delivered.
• Material requirement: The “special case”
  The authority will only grant its approval if there is a special case. This is the case if the reasons for termination are not related to the woman's condition during pregnancy or her situation after giving birth. The courts apply extremely strict standards here.
• Recognized case groups
  • Operational reasons: Termination is almost exclusively considered in the event of a complete and permanent closure of the business if there are no other employment opportunities, including in another branch of the company. The mere closure of a department or restructuring is generally not sufficient. The hurdles are also high in the event of insolvency.
  • Behavioral reasons: In this case, there must be particularly serious breaches of duty that make it unreasonable for you to continue the employment relationship, even taking into account the woman's interests. Possible examples include persistent refusal to work or criminal offenses to your detriment (e.g., theft, fraud). A single violation is almost never sufficient.

4. Special cases and procedural distinctions

• Protection against dismissal during the probationary period: Special protection against dismissal applies without restriction from the first day of employment. The simplified dismissal option during the probationary period pursuant to Section 622 (3) of the German Civil Code (BGB) is completely superseded.
• Fixed-term employment relationships: The Maternity Protection Act does not protect against the end of an employment relationship due to the expiry of a fixed term. A fixed-term employment contract for a specific purpose or a fixed-term employment contract based on the calendar ends automatically when the purpose is achieved or on the agreed date, without the need for termination.
• Termination agreement as an alternative: A termination agreement is a bilateral agreement to terminate the employment relationship and does not constitute unilateral termination. It is therefore not covered by the prohibition in Section 17 MuSchG. However, such agreements are subject to strict judicial review.
• Resignation by the employee: The protective provisions of the MuSchG are directed exclusively at the employer. The employee herself can terminate her employment relationship at any time in compliance with the notice periods applicable to her.

5. Procedural enforcement and the consequences of an invalid termination

• Invalidity of the termination: A termination that is declared in violation of Section 17 MuSchG without the required official approval is invalid ex lege. It has no legal effect from the outset.
• Obligation to take legal action and the three-week period: Even a null and void termination must be challenged in court. The employee must assert the invalidity within a period of three weeks after receipt of the written termination at the competent labor court by means of an action for protection against dismissal (Section 4 KSchG). If she misses this deadline, the termination is considered legally valid from the outset.

Conclusion

Terminating the employment of a pregnant employee is extremely risky from a legal perspective and virtually impossible in practice. The hurdles for obtaining an officially approved exception are prohibitively high. Every step, from responding to a pregnancy announcement to considering a termination agreement, requires the utmost legal care. Never act without first consulting a specialist lawyer to avoid serious and costly mistakes.