Federal Labor Court, 17.10.2013, Case No.: 8 AZR 742/12
Pregnant employees in Germany are subject to special protection against dismissal.
This protection is governed primarily by the Maternity Protection Act (Mutterschutzgesetz). The purpose of this law is to protect expectant mothers and, naturally, unborn children from health risks at work, financial losses, or dismissal from employment during pregnancy.
The Maternity Protection Act imposes specific obligations on both the employer and the employee.
For example, the employer is required to notify the relevant supervisory authority (state labor protection or trade supervisory offices) of the employee’s pregnancy and to adjust the workplace in such a way that the employee is adequately protected from risks to life and health.
The expectant mother, in turn, should inform the employer of her pregnancy as soon as she becomes aware of it. Although there is no legal obligation to do so immediately, it is advisable to inform the employer in a timely manner to avoid financial disadvantages for the employer and possible resulting claims for damages.
To avoid problems of proof (e.g., in a potential dismissal protection case), the notification of pregnancy should be made in writing, and the employee should request a receipt of the pregnancy notification from the employer.
As evidence, the employer should be provided with a doctor’s certificate confirming the pregnancy and the expected due date.
The notification of pregnancy still triggers special protection against dismissal even if the employer has already issued a termination. This is intended to protect pregnant employees from an employer attempting to dismiss them before becoming aware of the pregnancy. However, certain deadlines must be observed in this regard.
In the above-mentioned decision of the Federal Labor Court, the court had to determine whether an employer was required to pay compensation equivalent to three months‘ gross salary because the plaintiff, a pregnant employee, claimed that she was discriminated against on the grounds of her gender due to a dismissal during her pregnancy.
Employer Delays Withdrawal of the Dismissal
A month later, a company medical report confirmed both the pregnancy and a temporary work ban. Weeks later, the defendant finally declared the „withdrawal“ of the dismissal. The plaintiff, however, rejected an out-of-court settlement offered by the defendant as part of the withdrawal. Despite the delayed action by the defendant, the case proceeded to court.
Court Proceedings and Acknowledgment by the Defendant
The plaintiff subsequently filed a lawsuit with the labor court, seeking compensation equivalent to three months‘ gross salary due to discrimination on the grounds of her gender. After a lengthy dispute in court, the defendant eventually made a declaration of acknowledgment. In this, it was established that the dismissal was invalid. However, despite this determination, the dispute did not end. The plaintiff continued to demand compensation, arguing that she had been discriminated against due to her gender, namely her pregnancy. She contended that the dismissal was based on gender discrimination, warranting financial compensation.
Federal Labor Court Decision
Despite the court's success with regard to the dismissal, the plaintiff also claimed compensation amounting to three months' gross salary for alleged discrimination on the grounds of her gender. She argued that the dismissal constituted discrimination because she had been pregnant. However, the Federal Labour Court rejected this claim. The court found that the defendant had not been aware of the pregnancy at the time of the dismissal. For this reason, the dismissal could not be considered discrimination on the grounds of gender.
Discrimination Claims Under the Maternity Protection Act
Another aspect of the case was whether the entitlement to maternity protection wages under § 11 of the Maternity Protection Act constituted discrimination, as only women can claim this special protection. The Federal Labor Court clarified that the special entitlement to maternity protection wages does not constitute gender-specific discrimination. This entitlement arises from biological circumstances and is intended to provide special protection for pregnant women. No discrimination is present in this regard.
Conclusion
In summary, the Federal Labor Court ruled that the dismissal did not constitute gender-specific discrimination and therefore compensation was not justified. The case demonstrates that dismissals during the probationary period, even when a pregnancy is later revealed, do not necessarily result in claims for compensation, provided the employer was unaware of the pregnancy at the time of the dismissal.
Source: Federal Labor Court
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