Absolute protection against dismissal for pregnant women: A bulwark in labor law

Being dismissed during pregnancy is a nightmare scenario for many female employees. However, German labor law provides one of the strongest protective regulations in this area with the Maternity Protection Act (MuSchG). As a pregnant employee, you enjoy special, almost absolute protection against dismissal. This article serves as your legal guide, explaining the legal basis, the key deadlines, and the rare exceptions so that you know your rights and can effectively enforce them.

Summary

Protection against dismissal for pregnant employees is enshrined in Section 17 of the Maternity Protection Act (MuSchG) and constitutes a comprehensive prohibition of dismissal. It protects against any type of dismissal by the employer from the beginning of pregnancy until four months after childbirth. The prerequisite is that the employer is aware of the pregnancy or is notified of it within two weeks of receiving the notice of termination. Only in extremely rare exceptional cases can the competent authority approve a dismissal.

1. Legal basis and scope: The protection afforded by Section 17 MuSchG

The core of the protection is Section 17 of the Maternity Protection Act (MuSchG). This provision establishes a far-reaching prohibition on dismissal, which is intended to secure job security during a particularly vulnerable phase of life. It is important to understand the scope of this protection precisely.

Personal scope

The protection is not limited to traditional full-time employees. It covers a wide range of people in order to ensure comprehensive protection. The following are protected:

• Full-time and part-time employees
• Trainees
• Home workers
• Persons similar to employees (e.g., certain freelancers who are economically dependent and in need of social protection)

The status within the company, such as a management position, is irrelevant.

Material scope

The law makes no distinctions here. The prohibition in Section 17 MuSchG is comprehensive and covers all forms of termination by the employer. These include:

• Ordinary (timely) termination, regardless of whether it is based on personal, behavioral, or operational reasons.
• Extraordinary (immediate) termination for good cause in accordance with Section 626 BGB.
• Termination for change, which aims to change the working conditions under threat of termination.

Any termination that violates this prohibition is legally invalid from the outset.

Time frame

The protection is subject to clear time limits. The prohibition of termination applies:

• Throughout the entire duration of the pregnancy, beginning on the day of conception.
• Until the end of four months after a miscarriage, provided that this occurred after the twelfth week of pregnancy.
• Until the end of the protection period after childbirth, but at least until the end of four months after childbirth. The postnatal protection period is usually eight weeks (twelve weeks in the case of premature or multiple births), so that in practice the protection against dismissal often lasts longer than four months.

2. Conditions for protection: knowledge and notification

Protection against dismissal does not take effect automatically. It is subject to one essential condition: the employer must be aware of the circumstances giving rise to protection.

Employer's knowledge at the time of termination

Ideally, the employer is already aware of your pregnancy or recent childbirth at the time of termination. In this case, the termination is inadmissible from the outset and therefore void.

The crucial two-week period for subsequent notification

But what if the employer was not yet aware of the pregnancy when the notice of termination was received? The law protects you here too. A notice of termination that has nevertheless been issued remains invalid if you notify your employer of your pregnancy within two weeks of receiving the notice.

Please note: Receipt of the notice of termination is the moment when the letter of termination comes into your possession (e.g., when it is placed in your mailbox). The two-week period begins at this point. This period is a so-called preclusive period. If you miss it, the termination can become effective.

Failure to meet the notification deadline for reasons beyond your control

The law is flexible in cases of hardship. If you miss the two-week deadline for a reason beyond your control (e.g., hospitalization without the possibility of communication), exceeding the deadline is harmless. However, you must then make up for the notification immediately as soon as the obstacle has been removed. “Immediately” means “without culpable delay.”

Proof of pregnancy

Your employer may require you to provide proof of pregnancy. According to Section 15 (2) MuSchG, you must submit a medical certificate or a certificate from a midwife at their request. The employer must bear the costs for this if they explicitly request proof. It is advisable to comply with this request promptly.

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

Although protection against dismissal is comprehensive, it is not without exceptions. In very limited cases, dismissal may be permissible. However, this requires a complex administrative procedure.

Application by the employer to the competent authority

The employer cannot terminate the employment relationship on its own authority. Before giving notice of termination, the employer must submit an application to 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) to declare the termination admissible in exceptional cases.

The authority examines the application under strict criteria and weighs the interests of the employer against the protection interests of the employee. Only if the requirements are met does it grant approval, which then paves the way for the employer to terminate the employment relationship.

Circumstances for a possible declaration of admissibility

The hurdles for such approval are extremely high. The law refers to “special cases” that must not be related to the woman's condition during pregnancy or her situation after giving birth. In practice, two main groups of cases are considered:

• Urgent operational reasons: A mere downsizing of the company or a slump in orders is generally not sufficient. Recognized circumstances include the complete closure of the company with no possibility of continued employment or the insolvency of part of the company.
• Serious behavioral reasons: In this case, the employee must have committed such a serious breach of duty (e.g., theft, serious insults, working time fraud) that it is objectively unreasonable for the employer to continue the employment relationship.

4. Special cases and important distinctions

• Protection against dismissal during the probationary period: The special protection against dismissal under Section 17 MuSchG applies without restriction from the first day of work. Even during the probationary period, dismissal without the consent of the authorities is excluded.
• Fixed-term employment relationships: The MuSchG does not prevent the regular expiry of a fixed-term or calendar-based employment contract. It only protects against premature ordinary termination of this contract.
• Termination agreement: A termination agreement is a bilateral agreement to terminate the employment relationship and not a unilateral termination by the employer. It is therefore not covered by the prohibition in Section 17 MuSchG. Review it carefully and seek legal advice.
• Resignation by the employee: As an employee, you can of course terminate your employment relationship at any time in compliance with the notice periods applicable to you.

5. Procedural enforcement: Taking action in the event of termination

Sollten Sie trotz bestehender Schwangerschaft eine Kündigung erhalten, ist schnelles und richtiges Handeln entscheidend.

Even if a termination that violates § 17 MuSchG is legally void, it will take effect in legal transactions if you do not take action against it. The law provides a clear procedural path for this, which is subject to a strict deadline.

You must assert the invalidity of the termination within a period of three weeks after receipt of the written termination by filing an action for protection against dismissal with the competent labor court. This is regulated in Section 4 of the German Unfair Dismissal Protection Act (KSchG).

If you miss this three-week deadline for filing a lawsuit, the so-called fictitious effect of Section 7 KSchG applies: The termination is then considered legally valid from the outset, even if it was originally void. The result would be the loss of your job.

Conclusion

Protection against dismissal for pregnant women is strong, but subject to formal requirements and strict deadlines. Mistakes can mean losing your job. In order to fully protect your rights in a timely manner, it is essential to consult a specialist labor lawyer immediately. Do not hesitate to contact us immediately in the event of dismissal.