Germany: Protection of pregnant employees in dismissal proceedings

The two-week period for submitting a request for the admission of late claims by employees who become aware of their pregnancy only after the expiration of the filing period specified in the Sec. 4 and 5 of The German Protection Against Dismissal Act (KSchG) may be too short. In this case, the period could be incompatible with EU law.

(ECJ, ruling of June 27, 2024 - C-284/23)

Referral to the European Court of Justice by the Labour Court of Mainz

A nursing assistant, who was dismissed by her employer at the beginning of October 2022, was unaware of her pregnancy at the time of her dismissal. It was only on 9 November, 2022 — more than a month after receiving the termination notice — that her pregnancy was confirmed by her doctor. Although notifying her employer the following day about her pregnancy, she did not file a claim for protection against the dismissal until 13 December.

As a result, the three-week period for filing a claim for protection against dismissal had already expired. Although sec. 4 sent. 4 KSchG states that in cases where prior approval by an authority is required, the period starts only when the employee is informed of the approval, the Federal Labor Court (BAG) has consistently ruled that this does not apply if the employer only becomes aware of the circumstances justifying special protection against dismissal after the termination notice has been received.

In such constellations, a pregnant employee could file a request for admission of the late action. However, the employee in the present case had filed such a request after the applicable period had expired. 

Nevertheless, the Labour Court of Mainz did not dismiss the claim. Due to doubts about compatibility with EU law, which requires that the opportunities for a pregnant employee to file a claim must be in line with the principle of effectiveness, it referred the case to the European Court of Justice (ECJ) for a preliminary ruling (resolution dated April 24, 2023 -4 Ca 1424/24). 

The ECJ ruling

The ECJ shared these concerns. It stated that the Member States are obliged to take the necessary measures to protect pregnant employees against dismissal. Although the ECJ points out that a short exclusion period does not automatically violate the principle of effectiveness, given the need for legal certainty, it emphasises that the special situation in which a woman finds herself at the beginning of her pregnancy must be adequately considered.

It is also important to note that the two-week period for the late filing of a claim is shorter than the regular three-week period for filing a claim against a dismissal. The EJC compared the present case to a situation in which a woman is already aware of her pregnancy at the time of the dismissal. In this case, the employee would have three weeks to file a claim for protection against dismissal, while an employee who detects her pregnancy after the expiry of this period would only have two weeks to request a late admission of the claim. Within this short period, the employee would have to ensure that she receives appropriate legal advice and, if necessary, also draft and file the actual claim.

There is also uncertainty about the circumstances that triggers the start of the period under sec. 5 para. 3 sent. 1 KSchG, as well as about the competing set of obligations that national regulations impose on the pregnant employee in relation to her employer and the courts.

According to the ECJ’s ruling, the two-week period for late claim admission may be too short – and thus contrary to EU law – if the procedural modalities in connection with this request for admission do not meet the requirements of the principle of effectiveness.

Implementation of the ECJ decision by the Labour Court of Mainz

Following the EUJ's decision, the Labour Court of Mainz ruled that the dismissal was invalid (ruling of August, 14, 2024, 4 Ca 1424/22). Since the employee was pregnant at the time of the notice of termination, the dismissal would have required the consent of the state authority responsible for occupational safety and health (sec. 17 para. 1 of the German Maternity Protection Act). 

The three-week period for filing a claim only begins with the notification of this consent (sec. 4 sent. 4 KSchG). Although the BAG jurisprudence generally states that this rule does not apply when the employer is unaware of the legal special protection against dismissal, this is reasonable and justified in principle. However, in a European law-compliant interpretation, it should no longer apply in cases where the pregnancy is detected after the dismissal. A teleological reduction of sec. 4 sent. 4 KSchG would violate the principle of effectiveness required by European law in these cases. Furthermore, an employer is not in need of protection in this respect, since it may not be assumed that a pregnant employee intends to waive her special protection against dismissal, in particular if she – as in this case – has already expressly asserted the invalidity of her dismissal to the employer herself.

At the same time, the Labour Court of Mainz refused to apply the three-week period to retrospectively allow the filing of a claim under Sec. 5 para. 2 KSchG due to a lack of a regulatory gap.

Conclusion

With this decision, the ECJ consistently continues its previous case law (e.g. Pontin – ECJ, judgment of October, 29, 2009 – C-63/08).  Since the ECJ did not provide a final ruling on the applicability of the aec. 4 and 5 KSchG in the present case we will have to wait and see how this decision will be implemented in future labour court rulings.