Can one end a month-long pregnancy?
Termination and protection against dismissal during pregnancy
- Pregnancy in labor law
- Official exemption possible
- Notification obligation of pregnant women
- Termination by the pregnant woman
- Pregnant when applying
- Pregnancy in the trial period
- Fixed-term employment
1. Pregnancy in labor law
For good reason, expectant mothers are particularly protected under labor law. This applies in particular to the dismissal of pregnant women, which the legislature wants to prevent as far as possible. We give you an overview of the most important legal regulations.
In principle, termination during pregnancy is not possible. This is regulated by Section 17 of the Maternity Protection Act. Even up to four months after the birth, the mother is protected against dismissal by the employer.
The main purpose of the regulations is to guarantee the expectant mother's financial security and to protect her from psychological stress caused by the pressure of dismissal. In addition, recovery and the development of a mother-child relationship in the first few weeks after delivery should be promoted. In order to secure financial security, the mother receives maternity allowance from the health insurance company as well as a subsidy from the employer for the period immediately before and after the childbirth - i.e. during the ban on employment.
Pregnancy and motherhood are also under the special protection of the Basic Law. Article 6 (4) of the Basic Law states: "Every mother has the right to the protection and care of the community."
As a result, you can almost never ignore the regulations on maternity leave. This applies to both the mother and the employer.
2. Official exemption possible
From the time the employee is pregnant, there is a for the employer Prohibition of terminationif the employee notifies the employer of the pregnancy (no later than two weeks after a notice of termination or in general). He is then obliged to create the working conditions that relieve the expectant mother physiologically and psychologically (for example, by prohibiting heavy physical work and protecting against harmful environmental influences).
However, if there are (operational or behavioral) reasons that have nothing to do with the pregnancy, the competent highest state authority can exceptionally declare a dismissal to be permissible. For the special protection of the mother, special formal requirements are tied to the termination. This may only be done in writing and must contain the permissible and approved reason for termination.
The employer is obliged to obtain approval from the responsible supervisory authority. In North Rhine-Westphalia, for example, these are the district governments and in Hesse the regional councils.
In other federal states, the responsible supervisory authority is often the trade supervisory authority (e.g. in Bremen, Bavaria and Lower Saxony).
These cases are very rare in practice. On the one hand, because it is extremely rare to prove that the pregnancy has nothing to do with the termination, and on the other hand, because the reasons for this (such as the insolvency of the employer) are seldom available.
If the employer terminates the employment relationship without the required official approval, he can: Payment of monetary compensation be required.
Practical example: The termination of a pregnant woman represents discrimination because of the sex according to the General Equal Treatment Act (AGG), which obliges the employer to pay compensation in money (judgment of the Berlin State Labor Court of 16.09.2015 - Az. 23 Sa 1045/15). The injured party was awarded a compensation of 1,500 euros.
The proceedings concerned a paralegal who was fired during her probationary period. The dismissal was declared ineffective in the subsequent dismissal protection process because the employer had not obtained the required consent from the occupational safety and health authorities. A few months later, the woman's employer fired the woman again - this time again without the required official approval.
3. Notification obligation of pregnant women
So that the (future) mother is particularly protected under labor law, the employer must of course also know that she is pregnant. That is why there is one for pregnant women Notification obligation according to § 15 MuSchG. Then they should inform the employer of the pregnancy and the expected due date.
Of course, this only applies from the point in time at which you actually know the pregnancy. At this point, the employer should be informed immediately.
A legal obligation to immediately notify the pregnancy can, however, result from certain fiduciary duties towards the employer. This can be the case, for example, if the employee occupies a key position in the company and training a substitute would take a long time. Even if the interests of the employer are affected by the fact that employment bans apply due to pregnancy (e.g. ban on night work), the pregnancy must be reported immediately. If the pregnant woman does not comply with this legal obligation, she may be liable for damages.
For reasons of legal certainty, the employer can also request a “certificate” from a doctor or midwife confirming the pregnancy and specifying the expected due date. The specified date forms the basis for calculating the deadlines, such as the six-week period for the prohibition of employment before the delivery. In the frequent case that the calculated due date is not met, the deadlines will be adjusted accordingly.
If the employer terminates the contract beforehand, i.e. without being aware of the pregnancy, the mother has up to two weeks after receipt of the notice of termination to notify him. If this period expires, the termination becomes effective. There is, however, an exception in favor of the expectant mother: If she is unable to meet this deadline, for example because she does not know anything about the pregnancy, she can make up for the notification immediately after becoming aware of the pregnancy. In this case, she receives full protection against dismissal.
Example: An employee is pregnant in the first month and has not noticed this so far. Her employer fires her and the doctors don't confirm the pregnancy until four weeks later. If she notifies the employer of the pregnancy immediately, the "delay" is not a problem. It is important to point out that the pregnancy also existed at the time of termination. [BAG 15.11.1990 AP No. 17 to §9 MuSchG 1968]
4. Termination by the pregnant woman
The reverse is also conceivable. If a woman wishes to quit during pregnancy, she does not have to comply with the protective provisions of the Maternity Protection Act. Your termination is also permissible if, for example, the employer has violated the reporting obligations to the supervisory authority (judgment of the Federal Labor Court of August 19, 1982, file number: 2 AZR 116/81).
5. Pregnant when applying?
Many employers are not exactly eager to hire a pregnant woman. Regardless of their qualifications, a pregnant woman is absent for at least 14 weeks (six weeks before and eight weeks after delivery). In the meantime, their salary is still to be paid and the possibility of parental leave is also an option. This often has an impact on the selection of applicants. Although employers are not allowed to reject female applicants because they are pregnant, in practice employers find many excuses as to why they prefer another applicant. It is usually impossible to prove otherwise.
For this reason, many women withhold their pregnancy in their application, and some even actively lie in the job interview. This practice was controversial for a long time until the Federal Labor Court a few years ago [BAG 15.10.1992 AP No. 8 to Section 611a BGB] declared that lying in the job interview was permissible in this case in order to protect itself against discrimination because of pregnancy. A subsequent challenge to the employment contract is also out of the question.
6. Pregnancy during the probationary period
The principle of Section 17 MuSchG that pregnant workers may not be dismissed also applies during the probationary period.
While employees in the usually 6-month probationary period can otherwise be terminated with a notice period of two weeks and without giving any particular reasons, the situation is completely different for pregnant women:
An employee who becomes pregnant during the probationary period can only be dismissed by the employer from the knowledge of the pregnancy up to four months after the birth if the competent authority has previously expressly declared the dismissal to be permissible. If he terminates her without knowing about the pregnancy, the termination is ineffective even if the woman notifies him of her pregnancy within two weeks of receiving the termination. If the woman takes parental leave after the birth, she will continue to enjoy protection against dismissal afterwards.
Overall, the simplified right of termination for pregnant women during the probationary period is virtually completely nullified.
7. Fixed-term employment
The Maternity Protection Act, especially § 17 MuSchG, is coming only in the event of termination by the employer for application (see above). If a fixed-term employment contract expires during pregnancy, the employment relationship ends normally as if the employee were not pregnant.
- A termination prohibition for pregnant women applies from the moment the employer is informed of the pregnancy up to four months after the birth.
- If the employer did not know anything about the pregnancy of the employee at the time of the notice of termination, this can be communicated to him no later than two weeks after receipt of the notice of termination.
- The ban on termination also applies during the probationary period.
- The termination of a pregnant woman is only possible with the approval of the authorities, despite the prohibition of termination.
- So that the employer can take the necessary measures to protect the pregnant woman, the pregnant woman is required to notify the employer of the pregnancy. However, there is only an obligation to notify in exceptional cases.
- The ban on dismissal does not affect fixed-term employment contracts. A fixed-term contract also ends if you are pregnant.
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Christina Gehrig works as a lawyer specializing in labor law in the Hasselbach law firm with offices in Cologne, Bonn and Frankfurt am Main. She advises employers, employees, executives and works councils, above all in dismissal protection proceedings as well as questions about severance pay and termination agreements.
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