Labour law regulations in the event of termination during pregnancy

German labour law contains special protective provisions for pregnant employees. These regulations aim to prevent termination during pregnancy as far as possible. Here is an overview of the most important legal provisions in this context.

In general, Section 17 of the Maternity Protection Act protects employees from termination during pregnancy. This protection even extends up to four months after the birth, during which time dismissal by the employer is also not permitted.

The main aims of these provisions are to ensure the financial security of the expectant mother and to avoid the psychological stress of a possible dismissal. In addition, these regulations are intended to help ensure that a mother and her child have enough time to bond in the first few weeks after the birth. In order to ensure financial security, the expectant mother receives maternity pay from her health insurance fund and financial support from her employer during the period of non-employment before and after the birth.

In addition, Article 6 (4) of the Basic Law grants every mother special protection and care by the community.

Maternity protection regulations are generally binding and can hardly be ignored. This applies to both the mother and the employer.

Termination during pregnancy only possible with special authorisation

From the moment an employee discloses her pregnancy to her employer, special protection against dismissal comes into force. From this point onwards, the employer is obliged to ensure that the working environment and tasks of the expectant mother do not have any harmful effects on her health, such as lifting heavy loads or coming into contact with harmful substances.

In rare cases, if the reasons for dismissal are unrelated to the pregnancy (such as operational or behavioural incidents), dismissal may be approved by the competent state authority. The employer must obtain this authorisation; depending on the federal state, different authorities are responsible for this, such as the district governments in North Rhine-Westphalia, the regional councils in Hesse or the trade supervisory authorities in other federal states.

The notice of termination must always be submitted in writing and should also contain the exact reason for the authorised termination.

In practice, however, such cases rarely occur, partly because it is difficult to prove that the pregnancy had no influence on the dismissal and partly because the grounds for dismissal rarely apply. If the employer terminates the employment contract unlawfully, this can result in a fine.

Duty to inform about pregnancy

In order to guarantee expectant mothers the statutory protection under labour law, it is crucial that the employer is informed about the pregnancy. This is stipulated in Section 15 of the Maternity Protection Act (MuSchG). According to this, the expectant mother must inform the employer of her pregnancy and the expected date of birth.

As soon as the expectant mother becomes aware of her pregnancy, she should inform her employer immediately. Issues such as the familiarisation period for an interim solution must be taken into account, as must work restrictions resulting from the pregnancy (e.g. ban on night work).

To prove the pregnancy, the employer can request a medical certificate or a midwife to confirm the pregnancy and state the expected date of birth. This date is decisive for the calculation of the deadlines, such as the 6-week lead time for the employment ban before the birth. In the event of deviations from the expected date of birth, the deadlines are adjusted accordingly.

If the employer gives notice of termination before finding out about the pregnancy, the expectant mother has up to two weeks after receiving the notice to inform the employer. If she misses this deadline, the dismissal becomes effective. However, exceptions apply if the expectant mother is unable to meet this deadline. This may be the case, for example, if she was not yet aware of her pregnancy. In this case, it is sufficient to inform the employer retrospectively after becoming aware of the pregnancy. In this case, full protection against dismissal remains in place.

Pregnant employee can resign without any problems

There may also be cases in which a pregnant employee decides to terminate her employment contract. In these situations, she is not bound by the protective provisions of the Maternity Protection Act. Her termination would also be valid if, for example, the employer has neglected his reporting obligations to the supervisory authority. This was confirmed in a ruling by the Federal Labour Court on 19 August 1982 (case reference: 2 AZR 116/81). It is the employee’s responsibility to understand and consider her rights and obligations in this situation before making a decision.

Pregnancy during the application phase

Employers are often reluctant to employ pregnant women. This is based on the fact that a pregnant woman is usually absent for at least 14 weeks. Usually six weeks before and eight weeks after the birth. During this period, the employer must continue to pay wages in addition to the potential parental leave. This can already have an impact on the recruitment decision. Although it is forbidden by law to reject candidates on the grounds of pregnancy, employers often find other reasons for their decision. Proving discrimination on the grounds of pregnancy is usually very difficult.

This is why some women do not mention their pregnancy in job applications, sometimes even actively lying in the interview. This approach was controversial for a long time, but a decision by the Federal Labour Court [BAG 15.10.1992 AP No. 8 on Section 611a BGB] allows pregnant women to conceal their situation in order to be protected from possible discrimination. Accordingly, termination of the employment contract retrospectively for this reason is not permissible.

Termination during pregnancy during probationary period usually ineffective

The special protection against dismissal for pregnant employees in accordance with Section 17 of the Maternity Protection Act (MuSchG) remains effective even during the probationary period.

Under normal circumstances, employees can be dismissed during the probationary period, which usually lasts six months, with two weeks’ notice and without any special justification. However, if an employee becomes pregnant during her probationary period, the situation changes significantly:

From the moment the employer becomes aware of the pregnancy, there is special protection against dismissal. This means that the employer can only dismiss the pregnant employee with the explicit consent of the relevant authorities. This regulation also applies up to four months after the birth. If the employee is dismissed without knowledge of the pregnancy, the dismissal is nevertheless invalid if the employee discloses her pregnancy within two weeks of receiving the dismissal notice. If the employee takes parental leave after the birth, the protection against dismissal remains in place.

Summary: The right to simplified dismissal during the probationary period has been almost completely cancelled for pregnant employees.

Fixed-term employment relationships also end regularly during pregnancy

The Maternity Protection Act, in particular Section 17 MuSchG, applies exclusively to terminations of employment by the employer (see above). If a fixed-term employment contract ends during pregnancy, the employment relationship is terminated as normal, regardless of the employee’s pregnancy.

Conclusion on protection against termination during pregnancy

• Protection against dismissal for pregnant women begins as soon as the employer is informed of the pregnancy. The special protection lasts until four months after the birth.
• If the employer was not aware of the pregnancy at the time of the dismissal, the employee has up to two weeks after receiving the dismissal notice to inform the employer.
• The protection against dismissal also applies during the probationary period.
• A pregnant employee can only be dismissed with the approval of the authorities, even if the ban on dismissal applies.
• In order to give the employer the opportunity to take the necessary protective measures for the pregnant woman, the pregnant woman should inform the employer of the pregnancy. However, there is only an obligation to notify in certain exceptional cases.
• The ban on dismissal does not affect fixed-term employment contracts. A fixed-term contract therefore ends regardless of the pregnancy.