Aktualisiert am:
Federal Labor Court, March 26, 2015, Ref.: 2 AZR 237/14
Special protection against dismissal exists, among others, for works council members and individuals with equivalent status (§§ 15 IV, 5 of the Dismissal Protection Act – KSchG), for pregnant women (§ 9 Maternity Protection Act – MuSchG), for those entitled to parental leave (§ 18 Federal Parental Benefits and Parental Leave Act – BerzGG), and for severely disabled individuals.
Some of these regulations make dismissals subject to approval by authorities. For example, § 85 Social Code IX (SGB IX) stipulates that the dismissal of a severely disabled person’s employment by the employer requires prior approval from the Integration Office.
In the case of pregnant women, the authority responsible under the respective state law must approve an employer’s dismissal upon request (§ 9 III 1 MuSchG), provided that the employer was aware of the pregnancy at the time of dismissal or was informed of it within two weeks of receiving the notice of dismissal.
Without this approval, dismissal is generally prohibited under § 9 (1) Sentence 1 MuSchG.
However, it is questionable whether maternity protection in the case of fertilization outside the body (in vitro fertilization) already applies from the time the fertilized egg is implanted (so-called embryo transfer) or only after its successful implantation (nidation).
The Federal Labor Court had to decide on this issue in the present case.
Background of the Case
The plaintiff had been employed by the defendant’s insurance agency as one of two employees since February 2012. Until her dismissal, she had not received any warnings or reprimands for poor performance. In January 2013, she informed the defendant about her unfulfilled desire to have children and an upcoming in vitro fertilization. The embryo transfer took place on January 24, 2013. Only a week later, on January 31, 2013, the defendant dismissed her without official approval. The dismissal occurred before the pregnancy was confirmed on February 7, 2013, and the defendant became aware of the pregnancy on February 13, 2013.
Legal Dispute and Dismissal Protection Claim
The plaintiff filed a dismissal protection claim, arguing that the dismissal was related to her planned pregnancy. Both the Labor Court and the Regional Labor Court upheld the claim and declared the dismissal invalid. The plaintiff argued that she had already been under special dismissal protection under the Maternity Protection Act due to the embryo transfer.
Ruling of the Federal Labor Court
The Federal Labor Court confirmed the rulings of the lower courts and also declared the dismissal invalid. The plaintiff was under the special protection of § 9 (1) Sentence 1 MuSchG at the time of dismissal, which grants special protection against dismissal to pregnant employees. Furthermore, the dismissal violated the prohibition against discrimination under the General Equal Treatment Act (AGG), as the dismissal was related to the planned pregnancy and the in vitro fertilization.
Reference to European Law
The Federal Labor Court referred to a ruling of the European Court of Justice (ECJ) from February 26, 2008 (C-506/06). In this ruling, the ECJ determined that a dismissal based on participation in in vitro fertilization could constitute direct discrimination based on gender. The court followed this jurisprudence and concluded that the dismissal in the case was directly related to the plaintiff’s planned artificial fertilization and potential pregnancy, which constituted discrimination.
Source: Federal Labor Court
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