Germany Update: Protection Against Dismissal for Pregnant Women if the Time Limit for Filing an Action is Missed

Pregnant employees enjoy the special protection against dismissal under Section 17 of the Maternity Protection Act, i.e. their employment relationship may not be terminated in principle. Only in exceptional cases can the dismissal be declared permissible by the competent authority at the request of the employer. However, the prerequisite for this is that the dismissal is not related to the pregnancy. The dismissal of a pregnant employee can nevertheless be considered effective later. This is because the pregnant woman must in principle file an action for protection against dismissal within three weeks of receipt of the notice of termination (Section 4 KSchG). After this period, the termination is considered effective from the outset (Section 7 KSchG).

However, the three-week period for filing an action may have already expired if an employee only learns of her pregnancy after receipt of the notice of termination. She then has only two weeks to file an application for retrospective leave to sue pursuant to Section 5 KSchG.

The European Court of Justice (ECJ) has now dealt with the question of whether this two-week period is compatible with European law:

Decision of the ECJ

The pregnant employee of a nursing home filed a lawsuit against her dismissal before the Mainz Labor Court. She had missed the three-week deadline of § 4 KSchG because she had only learned of her pregnancy after the expiry of the deadline. The employee had also failed to file an application for leave to appeal for the late action within the further period of two weeks from becoming aware of her pregnancy. The Mainz Labour Court therefore asked the ECJ in the context of a request for a preliminary ruling whether the German provisions of Sections 4 and 5 of the Protection Against Dismissal Act are not precluded by Articles 10 and 12 of Directive 92/85/EEC (the so-called “Maternity Protection Directive”). According to this provision, the Member States must ensure effective and effective legal protection for pregnant women.

In its decision of 27 June 2024 (C-284/23), the ECJ first found that a pregnant employee who was already aware of her pregnancy at the time of her dismissal had three weeks to bring an action under German law. An employee who, for a reason beyond her control, has no knowledge of her pregnancy before the expiry of this period, on the other hand, only has two weeks. In view of the particular situation in which a woman finds herself at the beginning of her pregnancy, that short period is liable to make it very difficult for the pregnant worker to obtain effective legal protection. This is because she not only had to seek appropriate advice during this time, but also, if necessary, draft and submit an application for leave to appeal for the late action as well as the actual action for protection against dismissal. The two-week period of § 5 KSchG therefore does not appear to be compatible with Articles 10 and 12 of Directive 92/85/EEC – especially in comparison with the ordinary period of three weeks.

The decision of the Mainz Labour Court, which must now implement the decision of the ECJ in the specific individual case, remains to be seen.

Result

For the employers, the ECJ’s decision has only indirect effects. This is because it does not concern the question of whether the dismissal of a pregnant employee is permissible by way of exception. Rather, the only question is how long the employee can still assert the invalidity of the dismissal. In any case, legal certainty sometimes only occurs late in the dismissal of a pregnant employee. This is because the time limit for filing a subsequent action is based on the employee’s knowledge of her pregnancy existing at the time of receipt of the notice of termination (so-called “removal of the obstacle”). This acquisition of knowledge can sometimes occur several weeks/months after receipt of the notice.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germanylabor@transatlanticlaw.com

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