Here you can find out everything about your special protection against dismissal during pregnancy and parental leave.
If you are currently pregnant, have just given birth, or are on parental leave, this article is just right for you if you want to learn about your protection against dismissal. You probably already know that you may have special protection against dismissal. Here you will find further important details about your special protection against dismissal, giving you a complete overview. In particular, you will learn:
- from when you have special protection against dismissal,
- over what period you are particularly Terminations are protected,
- what consequences a dismissal by the employer has and
- whether termination is nevertheless possible in exceptional cases.
A great deal of legal knowledge has been incorporated into this guide. All important statements are supported by case law references that lead directly to the relevant judgment. You are therefore invited to use the guide to clarify any open questions and obtain the information you are still missing. Of course, I am also available to you as a Specialist lawyer for employment law in Hamburg and surrounding areas are available.
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Table of contents
Special protection against dismissal for pregnant women
Certain groups of people are particularly protected against termination of employment. First and foremost is the special protection against dismissal for pregnant women and mothers under § 17 MuSchG But employees on parental leave also enjoy § 18 BEEG Special protection against dismissal.
Protection against dismissal under the Maternity Protection Act
According to Section 17 (1) of the MuSchG, the employer is not permitted to dismiss a woman in the following situations:
- During her pregnancy
- Four months after the miscarriage (if the miscarriage occurred after the 12th week of pregnancy)
- Until the end of the protection period after childbirth – but at least four months after childbirth
It's important for you to know that the special dismissal protection for pregnant women only applies if the pregnancy already existed at the time of dismissal. The date of pregnancy is calculated as follows:
Day of medically certified birth – 280 days
The expected date of delivery is not included in this calculation. This is merely an approximation based on probability, which the Federal Labor Court has made. The courts' decision intends to ensure legal certainty.
BAG, judgment of 7 May 1998 – 2 AZR 417/97
After the birth, the mother still continuing special protection against dismissal It initially lasts until the end of the protection period after childbirth. According to Section 3 (2) of the MuSchG, this normally amounts to eight weeks after deliveryBut since the Minimum protection against dismissal of four months If the period after delivery is longer, this is usually the determining factor. However, the four-month post-dismissal protection period may, in individual cases, be shorter than the duration of the protection period, for example, if a premature birth coincides with a multiple birth or a disability.
Inadmissibility of any terminations
If special protection against dismissal exists under Section 17 of the MuSchG (Maternity Protection Act), the employer is not permitted to terminate any type of employment. This applies equally to terminations of employment and terminations with changes to the employment contract. It is also irrelevant whether the employer intends the termination as part of a mass layoff or a plant closure. However, terminations by you as an employee remain permissible. The employer can also other forms of termination such as:
- Fixed-term employment contracts
- Termination agreements
However, the protection against dismissal is not unlimited. First of all, it is necessary that the employer has positive knowledge of the pregnancy at the time of termination, for example, through the line manager responsible for human resources. If there was no knowledge of the pregnancy at the time of termination, the special protection against dismissal may still apply. This applies if
- the pregnancy actually existed at the time of termination and
- the employee informs the employer about the pregnancy within two weeks after receipt of the notice of termination or
- the pregnant employee did not inform the employer within two weeks for reasons beyond her control, but provided this information immediately.
Absolute ban on termination – but subject to permission
In addition, an "absolute ban on dismissal" applies, but with a "reservation of permission." "Absolute ban on dismissal" means that the dismissal of a pregnant woman or mother with special dismissal protection is fundamentally invalid. Incidentally, the dismissal is also invalid if only the preparatory measures fall within the period of special dismissal protection. This follows from Section 17 paragraph 1 sentence 3 MuSchG.
However, the employer has the option to Approval of the competent authority and have the termination declared permissible ("reservation of permission"). This is only considered in exceptional cases where it can be proven that they are not related to the pregnant woman's condition. Such circumstances are only considered to exist if exceptional circumstances justify giving priority to the employer's interests over the employee's, which are to be classified as primary interests. In connection with this, it is necessary that the continuation of the employment relationship with the employee becomes unreasonable because the employee has committed a particularly serious breach of their contractual obligations.
VGH Munich, decision of 29.02.2012 – 12 C 12.264
However, case law nevertheless emphasizes that the interests of pregnant women who are granted special protection against dismissal are considered more important by law. Expressions of opinion that are neither defamatory nor insulting generally do not justify denying special protection against dismissal.
Operational reasons as a special exception
Operational reasons, such as the closure of a business, constitute a special exception in which the competent authority may, in principle, permit termination. However, in such cases, the prerequisite is that future employment opportunities no longer exist. The Augsburg Administrative Court explained its reasoning:
The protection against dismissal does not serve to provide for the employee's needs. However, such a provision would be effectively imposed if the employer remained fundamentally obligated to continue paying wages despite the closure of the business during the protection period, while maintaining an employment relationship that is definitively deprived of its essence, which would be economically unreasonable. [...] Therefore, in the case of a permanent closure of the business—as in the present case—it is generally assumed that a special case exists.
Augsburg Administrative Court, decision of 20 November 2018 – 3 K 18.1459
Personal reasons, however, cannot justify a special exception.
General protection against dismissal with the approval of the authority
If the authority declares the termination admissible, this does not mean that the termination is effective. Rather, its effectiveness must be measured against the formal requirements and general protection against dismissal under the Dismissal Protection Act. The following special feature applies to the formal requirements:
The termination must be in writing and must state the reason for termination, Section 17 Paragraph 2 Sentence 2 MuSchG.
The employer is therefore obliged to explain the circumstances underlying the termination and may not limit himself to general, slogan-like terms.
for Section 15 Paragraph 3 BBiG clarified that BAG, judgment of 10 February 1999 – 2 AZR 176/98
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Special protection against dismissal for employees on parental leave
Employees on parental leave also have special protection against dismissal. The employer may not terminate the employment relationship from the time parental leave was requested. This follows from § 18 BEEG. A termination issued despite this would be § 134 German Civil Code null and void. If the protection against dismissal is claimed before the child reaches the age of three, it ends one day before the child's birthday.
However, the condition for the special protection against dismissal is that the requirements for parental leave are met according to § 15 BEEG and § 16 BEEG are met. While the first regulation establishes the personal requirements for taking parental leave, the second regulation stipulates the formal requirements. According to this regulation, the request for parental leave must be submitted in writing in a timely manner—seven or fourteen weeks before the start of parental leave. The request must include an indication of the periods for which parental leave is to be taken.
clarifying: Federal Labor Court, judgment of 12 May 2011 – 2 AZR 384/10
When special protection against dismissal applies during parental leave
However, the protection against dismissal does not take effect immediately; rather, the following rules apply:
- 0 to 3 years: Protection against dismissal takes effect at the earliest eight weeks before the start of parental leave.
- 3 to 8 years: Here, protection against dismissal takes effect at the earliest 14 weeks before the start of parental leave.
The special protection against dismissal also applies to employees who Part-time work perform no more than 30 hours of work per week for their employer during parental leave. Employees who do not take parental leave also benefit from special dismissal protection if they are entitled to parental allowance and work part-time to ensure childcare.
As with the special protection against dismissal for pregnant women, the same applies to parental leave: The highest state authority responsible for occupational safety and health can terminate the employment in special cases exceptionally for permissible be explained. Here, too, there is a absolute prohibition of termination with reservation of permissionA special case arises, among other things, if an employee breaches contractual obligations in a particularly serious manner or intentionally commits criminal acts to the detriment of the employer. These breaches of duty must result in the employer being unable to reasonably expect the employment relationship to continue until the termination ban expires.
VGH Munich, decision of 08.1.2014 – 12 ZB 13.1087
General administrative provisions specify special cases
The Federal Government has made use of the authorization granted in Section 18, Paragraph 1, Sentence 6 of the Federal Employment Act (BEEG) to issue general administrative regulations, thereby specifying the "special cases" in which, exceptionally, the employee's fundamentally overriding interest in the continuation of the employment relationship must give way to the employer's interest in termination. Further "special cases" are:
- Closure of operations
- Closure of the operations department
- Relocation of the company or department
In each case, however, it is a prerequisite that there are no opportunities for the employee to continue working in other companies or departments of the company.
Further special cases are those in which the continuation of the employment relationship after the end of parental leave unreasonably impedes the employer's economic existence and brings the employer close to jeopardizing its existence. One example is a company with a maximum of five employees where the employer urgently needs a qualified replacement, but whose employment is only possible on a permanent basis.
