Special protection against dismissal for pregnant employees: When does the protection begin?
When it comes to special protection against dismissal for pregnant employees, the question always arises as to how one legally determines the point in time from which the pregnancy and thus the protection begins.
The legal regulation for the protection of pregnant employees in Section 17 Paragraph 1 MuSchG stipulates that dismissal of a woman is inadmissible
(1.) during her pregnancy,
(2.) up to four months after a miscarriage after the twelfth week of pregnancy and
(3.) until the end of their protection period after the birth, but at least until the end of four months after the birth.
Years of case law from the Federal Labor Court
The Federal Labor Court recently had in its judgment of March 26, 2015 (2 AZR 237/14) clarified that in the case of natural conception, the start of the special protection against dismissal is determined in such a way that 280 days are counted back from the medically determined presumed day of delivery. The BAG has recognized that this also includes days in which the presence of pregnancy is unlikely. However, the BAG deliberately refrained from using a probability calculation in order to ensure that every pregnant woman can claim special protection against dismissal. It is therefore justified to initially use the calculation method that is most favorable to the employee.
This calculation method, which is favorable for female employees, has repeatedly received criticism in the literature because the BAG overextends the period of protection for female employees in a way that is not required by the standard.
LAG Baden Württemberg opposes the BAG case law
The Heilbronn Labor Court joined this criticism in 2021 and the LAG Baden-Württemberg also joined in the appeal. Deviating from the established case law of the BAG, the LAG Baden-Württemberg in its decision of December 1st, 2021 (Az: 4 Sat 32/21) a back calculation of only 266 days from the medically determined presumed delivery date is assumed and thus denies the employee's special protection against dismissal in the underlying case.
Legal uncertainty for the employment contract parties
Since this decision by the Baden-Württemberg LAG became known, there has been considerable legal uncertainty for both pregnant employees and employers due to the difference between the two calculation methods of at least 14 days, as both parties have relied on the calculation method that was more favorable to them in court proceedings from that point on (Employers: 266 days, employees: 280 days).
Federal Labor Court ends legal uncertainty with ruling of November 24, 2022
The BAG has now eliminated this legal uncertainty in the appeal process and with it Judgment from November 24th, 2022 the decision of the LAG Baden Württemberg was revoked and referred back for a new decision. Due to the annulment of the decision, it can be assumed that the previous case law of the BAG will remain and the calculation of 280 days back from the medically determined expected delivery date will continue. However, the BAG's complete decision with the reasons for the judgment is not yet available.
Burden of presentation and proof regarding the delivery date
However, the employer still has the option of undermining the evidentiary value of a medical certificate about the presumed date of delivery by presenting and proving circumstances that would make it contrary to scientifically proven knowledge to assume that the pregnancy began before the notice of termination was given. It is then the employee's responsibility to provide further evidence and, if necessary, to release her doctors from their duty of confidentiality.
The Federal Labor Court has also consistently stated that a corrected certificate will also be issued if more precise information is gained about the time at which it began during the course of the pregnancy.
Dr. Andreas Wolff, specialist lawyer for labor law
