Fired and pregnant -

Facts of the Case:

The parties are in dispute over the validity of an ordinary dismissal. The defendant terminated the employment relationship by letter dated 13 May 2022, with effect as of 30 June 2022. The notice of termination was received by the plaintiff on 14 May 2022. On 29 May 2022 (a Sunday), the plaintiff took a pregnancy test which yielded a positive result. She informed the defendant by email on the same day. She was only able to obtain a medical appointment for 17 June 2022. On 13 June 2022, the plaintiff filed a claim for protection against dismissal and simultaneously applied for its subsequent admission pursuant to Section 5 sentence 2 of the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz – KSchG). On 21 June 2022, she submitted a medical certificate dated 20 June 2022, confirming a pregnancy beginning on 28 April 2022. The Labour Court admitted the claim retroactively and upheld it on the merits. The Regional Labour Court rejected the defendant’s appeal. Through its appeal on points of law (Revision), the defendant continues to pursue its aim of having the claim dismissed.

 

Reasons for the Decision:

The defendant’s appeal on points of law is unfounded. The Regional Labour Court rightly rejected the appeal against the Labour Court’s decision in favour of the plaintiff. The termination dated 13 May 2022 is void pursuant to Section 17 paragraph 1 sentence 1 number 1, sentence 2 of the Maternity Protection Act (Mutterschutzgesetz – MuSchG) in conjunction with Section 134 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), as it was issued during an existing pregnancy. Although the plaintiff did not file her action for protection against dismissal within the three-week period prescribed under Section 4 sentence 1 of the Protection Against Unfair Dismissal Act (KSchG) — the deadline expired on 7 June 2022, and the claim was filed on 13 June 2022 — the action was to be admitted retroactively pursuant to Section 5 paragraph 1 sentence 2 KSchG. At the time of dismissal, the plaintiff had no knowledge of her pregnancy and only became aware of it following a medical examination. A positive pregnancy test alone is not sufficient in this regard. The two-week deadline for applying for retroactive admission therefore did not begin before 18 June 2022. However, the plaintiff had already filed the relevant application on 13 June 2022. The plaintiff was pregnant at the time she received the notice of termination. The defendant was informed of the pregnancy on 29 May 2022, thus within the time limit provided under Section 17 paragraph 1 sentence 1 MuSchG. The medical confirmation was submitted without undue delay. The missed notification deadline was not attributable to the plaintiff. The lower courts therefore rightly found that the dismissal was invalid under Section 17 paragraph 1 MuSchG.