Protection against dismissal starts 280 days before delivery
How long before the estimated due date does the law protect pregnant women from dismissal by the employer? The judges of the Federal Labor Court in Erfurt (BAG) took on this question.
The Maternity Protection Act stipulates that employees may not be dismissed if they are pregnant. Because the complaint of a pregnant woman recently caused a stir, the Federal Supreme Court has now made it clear from when exactly the ban on dismissal will come into effect.
Pregnant woman sues for protection against dismissal
A woman who was released on probation in November 2020 filed a lawsuit. She relied on the fact that she was pregnant at the time the notice of termination was given and supported this with a medical certificate on which the expected delivery date was August 5th, 2021. She also accused the employer of not having consulted the works council in accordance with the regulations.
However, both the labor court and the state labor court of Baden-Württemberg decided in favor of the employer. The justification stated – in contrast to earlier BAG case law – that “the time of conception can only be calculated back 266 days from the expected delivery date determined by a doctor on the basis of a typical course of events.”
Protection against dismissal for pregnant women begins 280 days before the birth
According to the BAG, the previously specified period was 280 days, which, however, did not match the typical course of pregnancy. For this reason, one should not assume the extreme limit of the possible beginning of pregnancy, but rather the average duration of pregnancy.
Legal protection for pregnant women
The Second Senate in Erfurt overturned the decision from Stuttgart, since the Maternity Protection Act serves to ensure that pregnant employees and their children are not “burdened by economic existential fears” – according to the judge.
In order to achieve this goal, a generalized approach with the widest possible scope of the ban on dismissal must be applied so that all pregnant employees benefit from it. Otherwise, employment relationships of pregnant people who conceived before the 266th day would not be covered by the ban on dismissal – which is not the intention of the law.
Sources used: spiegelmagazin/Instagram, betriebsrat24