Your rights as a pregnant woman in the probationary period

Pregnancy is an exciting and special time in life – full of anticipation, but also characterised by many new questions. However, if you have started a new job and become pregnant during your probationary period, you may have additional concerns and worries: How does the pregnancy affect your employment relationship? What rights and obligations does a pregnant woman have? Are you protected against dismissal? The good news is that the Maternity Protection Act offers expectant mothers comprehensive protection even during their probationary period. This article explains the legal regulations that apply to pregnant employees, what challenges may arise and how you can protect your rights during this sensitive phase of your life.

Pregnancy and probationary periods – a special situation

There is a stark contrast between pregnancy and probationary periods: while a probationary period allows for flexible solutions and quick dismissals, the Maternity Protection Act aims to provide maximum protection and security for expectant mothers.

Protection against dismissal for pregnant women

Pregnant employees are fully protected from dismissal by the Maternity Protection Act – from the announcement of the pregnancy until four months after the birth. This protection serves to protect expectant mothers from the stress of dismissal and to give them and their child sufficient time to bond. During the maternity protection period before and after the birth, the mother receives financial support in the form of maternity pay and an allowance from the employer. Contractual deviations from these regulations are not permitted.

A dismissal during pregnancy is only possible with special permission from the responsible state authority. Such permissions are issued in practice very rarely, since the employer must prove that the reasons for the dismissal are independent of the pregnancy – a difficult undertaking. If a dismissal occurs without the consent of the authority, it is ineffective.

Dismissal during the probationary period

During the probationary period, which can last between two weeks and six months depending on the employment contract, the employer and employee check whether long-term cooperation makes sense. During this phase, the conditions for dismissal are relaxed: The general protection against dismissal provided by the Dismissal Protection Act and the German Civil Code, which protects employees from socially unjustified dismissals, does not apply here! Dismissals during the probationary period can therefore be made without stating reasons, and the notice period is reduced to two weeks. This allows both sides to flexibly terminate the employment relationship if mutual expectations are not met.

Special protection against dismissal for pregnant women during the probationary period

The good news is that, despite the flexibility and relaxed rules on dismissal during the probationary period, the Maternity Protection Act stands above the regulations and offers expectant mothers comprehensive protection even during this phase of the employment relationship. Female employees who become pregnant during the probationary period enjoy the same special protection against dismissal as they would if they became pregnant during a permanent employment relationship:

No extension of the probationary period

According to Section 622 of the German Civil Code (BGB), the probationary period may not exceed a maximum of six months and cannot be extended due to pregnancy. An extension is only possible if a shorter probationary period (than 6 months) has been agreed and both parties agree – for example, in the event of a longer period of incapacity to work. However, pregnancy alone does not justify an extension. Since an employee can then no longer be dismissed without good cause, the actual purpose of a probationary period is no longer applicable. If you are pregnant during the probationary period, it is effectively shortened.

Maternity protection in small companies, too

Protection against unfair dismissal applies regardless of the size of the company, even in companies with fewer than ten employees. Although the Unfair Dismissal Protection Act often does not apply in such small companies, the Maternity Protection Act (section 17 MuSchG) still protects expectant mothers from discrimination and dismissal – even during their probationary period. This emphasises the importance of the special protection against dismissal, which also applies without restriction in small companies.

Exceptions to the special protection against dismissal

Even though the Maternity Protection Act offers pregnant employees comprehensive protection, there are certain exceptional cases in which protection against dismissal during the probationary period may be restricted.

1. Approval of the supervisory authority

You can be dismissed if the competent state authority approves the employer’s application. However, this is only possible for exceptional reasons, such as serious misconduct by the employee or the closure of the business. The employer must prove these reasons, and the authority carefully checks whether the dismissal is justified. Without this consent, the termination is invalid. In practice, the requirements of the respective authorities are very high; therefore, termination consent from the authority is a rare exception. Reasons for which the authority may consent to a termination may, for example,¹ be:

• Particularly serious violations by the employee of her contractual obligations or intentional criminal acts by the employee that make it unreasonable for the employer to maintain the employment relationship.
• The company/department where the employee is employed is closed or relocated and the employee cannot be employed in another company
• Maintaining the employment relationship after the end of parental leave jeopardises the existence of the company or the economic existence of the employer
• The continued existence of the employer is at risk in the case of micro-enterprises (companies with usually five or fewer employees) if the employer is urgently dependent on a suitably qualified replacement to continue operations, and can only hire her if she concludes an open-ended employment contract with her.

As you can see, the requirements are relatively stringent.

2. The employer was unaware of the pregnancy during the probationary period.

Furthermore, the protection against dismissal only applies if the employer is aware of the pregnancy. If the employee does not disclose her pregnancy within two weeks of receiving the notice of termination, the notice of termination may remain effective. However, there are exceptions: if the employee was not able to meet the deadline through no fault of her own – for example, because she only found out about her pregnancy later – the protection may continue to apply provided that she notifies the employer immediately.

3. Fixed-term employment contracts and pregnancy

The Maternity Protection Act, in particular Section 17, only protects against dismissals initiated by the employer. The protection against dismissal does not apply to fixed-term employment contracts, as these employment relationships end when the agreed fixed term expires, regardless of whether the employee is pregnant. However, financial security continues to be provided in the form of maternity or parental benefits after the contract ends. During the maternity protection period, the health insurance fund pays maternity benefit, supplemented by the employer’s contribution, until the end of the contract. After the employment contract has expired, the employer’s contribution no longer applies and the payments are made exclusively by the health insurance fund.

Maternity protection during the probationary period: What rights do pregnant women have?

During the probationary period, pregnant employees are subject to the same maternity protection regulations as outside of the probationary period. In addition to the special protection against dismissal, these include financial security through maternity pay and special protective measures at the workplace, such as a ban on night work or heavy lifting.

Prohibition of employment during the probationary period

During the probationary period, there is also a prohibition on employment if the work could endanger the health of the pregnant woman or the child (Section 16 of the Maternity Protection Act (MuSchG)). This includes, among other things, night work, lifting heavy loads and handling hazardous substances. A medical certificate describing the exact circumstances and restrictions is required for this. During a ban on employment or maternity leave, pregnant women receive a ‘maternity protection wage’ that is based on the average salary of the last three months.

Time off for examinations

In addition, pregnant employees are entitled to time off for necessary examinations. This regulation applies regardless of whether the employee is in a probationary period.

Dismissal during probationary period despite pregnancy – What to do?

If you are dismissed during a probationary period even though you are pregnant, you should act quickly and purposefully to protect your rights:

1. Inform your employer in writing about your pregnancy

Notify your employer in writing (registered letter) that you are pregnant. This is crucial for the special protection against dismissal provided by the Maternity Protection Act (Section 17 MuSchG) to take effect. If your employer was unaware of your pregnancy, you have two weeks after receiving the notice of termination to inform them. If you do not inform them of your pregnancy until after the two-week period has expired, you should check whether you were not at fault for missing the deadline. In such cases, the protection against dismissal remains in place if you provide the notification immediately.

2. Submit a medical certificate

Submit a medical certificate confirming your pregnancy and the expected date of birth. This certificate serves as proof that you were already pregnant at the time of the dismissal. Make sure that the employer confirms receipt of the certificate in writing.

3. Have the dismissal checked

Have the dismissal legally reviewed, as a dismissal during pregnancy is only permissible with the consent of the responsible state authority. This authority must prove that the dismissal is not related to the pregnancy and is based on exceptional reasons, such as operational necessities or serious misconduct. Without this official consent, the dismissal is invalid.

4. Seek advice and support

Contact a lawyer specialising in labour law, a trade union or an advice centre such as the anti-discrimination office. They will help you to enforce your rights.

5. Note the deadline for filing a lawsuit against unfair dismissal

You have only three weeks from the date of receiving notice to file a lawsuit against unfair dismissal at the competent labour court.