During pregnancy you enjoy special protection, the Federal Labor Court decided (symbol image)
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At what point during pregnancy are women protected from being kicked out by their employer?
The judges at the Federal Labor Court in Erfurt (BAG) dealt with this question.
Protection against dismissal takes effect 280 days before delivery
The BAG ruled that the statutory ban on dismissal for pregnant employees begins 280 days before the calculated date of delivery.
According to the labor judges, it violates the protection of pregnant women provided for by law if the ban on dismissal is only based on the average length of pregnancy of 266 days (reference number: 2 AZR 11/22).
Because in such a case it would be possible that some women with a longer pregnancy would not be protected against dismissal.
A woman from Baden-Württemberg, who had received her dismissal on November 7, 2020, had sued.
She then filed an action for protection against dismissal due to a faulty hearing of the works council.
When she found out she was pregnant on November 26, 2020, she informed her attorney.
He informed the labor court of the pregnancy on December 2nd and a few days later also the employer.
The lawyer also asserted that the dismissal was invalid because the statutory ban on dismissal for pregnant employees applies.
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The employer denied that she was pregnant at the time the notice was given.
The pregnancy was announced much too late.
According to the law, the employer must be informed two weeks after receipt of the letter of termination.
Women need to be protected – even if they are pregnant for a long time
The Regional Labor Court (LAG) in Stuttgart assumed that she was not pregnant at the time of the termination.
Based on the calculated delivery date and with an average pregnancy length of 266 days, there was no pregnancy when the notice was given.
In its judgment of November 24, 2022, the BAG determined that the ban on dismissal for pregnant employees applies “during their pregnancy” according to the law.
The legislature did not name the period of pregnancy.
But he wanted to protect pregnant women with the ban on dismissal in general from economic existential fears and the burden of a lawsuit for protection against unfair dismissal.
If only the average pregnancy length of 266 days applied, women with a longer pregnancy could still be dismissed against the will of the law.
In order to be able to protect all women, a pregnancy lasting 280 days before the expected delivery date must be assumed, according to the BAG.
It is true that women must notify their employer of their pregnancy within two weeks of receiving the letter of termination.
The prerequisite for this is that they also know about their pregnancy or have compelling indications of it.
If a deadline is missed, there is "culpable conduct" so that the special protection against dismissal no longer applies.
On the other hand, it is not "at fault" if the late notification to the employer is not due to the employee.
If the plaintiff only found out about her pregnancy on November 26, 2020, she was able to notify the employer "immediately".
If a late notification is due to the lawyer, the plaintiff cannot be accused of this.
The LAG would have to check this again.