The Federal Labor Court strengthens protection against dismissal for pregnant women

BAG judgment of 03.04.2025 - 2 AZR 156/24

In its judgement of April 3, 2025 (case reference: 2 AZR 156/24), the Federal Labour Court ruled that a delayed action for protection against dismissal brought by a pregnant employee who, through no fault of her own, only notices her pregnancy after the expiry of the deadline for filing an action in accordance with Section 4 sentence 1 KSchG at the time the letter of dismissal is received, must be admitted retrospectively at the employee's request in accordance with Section 5 (1) sentence 2 KSchG.

A. Facts of the case

The plaintiff was employed by the defendant as a treatment assistant in a medical practice in the field of ophthalmology. The defendant terminated the employment relationship with the plaintiff in compliance with the notice period on 30 June 2022.. The letter of termination was delivered to the plaintiff on May 14, 2022. On May 29, 2022, the plaintiff took a pregnancy test, which was positive. She immediately sought an appointment with a gynecologist, which she did not receive until June 17, 2022. On June 13, 2022, the plaintiff filed an action for protection against dismissal and applied for its subsequent admission. On June 21, 2022, she submitted a medical certificate to the labour court confirming that she was "approximately 7 + 1 weeks pregnant" on June 17, 2022. Her maternity certificate showed the expected date of birth as February 2, 2023, which means that the pregnancy had begun on April 28, 2022 (back calculation from the presumed date of delivery by 280 days).

The plaintiff was of the opinion that the action for protection against dismissal should be admitted retrospectively in accordance with Section 5 (1) sentence 2 KSchG. She had only gained certain knowledge of her pregnancy through the gynecologist's appointment on June 17, 2022. The defendant, on the other hand, was of the opinion that the provision was not applicable, as the plaintiff had gained knowledge of the pregnancy through the positive pregnancy test during the period for bringing an action under Section 4 sentence 1 KSchG. Both lower courts (first ArbG Dresden, judgment of 05.01.2023 - 6 Ca 1051/22 and then LAG Sachsen, judgment of 02.04.2024 - 2 Sa 88/23) upheld the action for protection against dismissal

The defendant filed an appeal against that to the Federal Labor Court.

B. The reasons for the decision of the Federal Labor Court

The defendant's appeal to the Second Senate of the Federal Labor Court was unsuccessful. It was admissible but unfounded. The Federal Labor Court ruled that the plaintiff's action for protection against dismissal was to be admitted retrospectively despite exceeding the deadline for filing an action pursuant to Section 4 sentence 1 KSchG, as the plaintiff had only become aware of her pregnancy through the earliest possible gynaecological examination on 17 June 2022 and had therefore acted without delay.

The dismissal at issue was invalid due to a breach of the prohibition on dismissal pursuant to Section 17 (1) No. 1 MuSchG. According to this provision, the dismissal of a woman during her pregnancy is inadmissible.

In the present case, the opposite is also not deemed to be the case pursuant to Section 7 half-sentence 1 KSchG. Accordingly, the termination is deemed to be legally effective from the outset if its legal ineffectiveness is not asserted in good time within the meaning of §§ 4 sentence 1, 5 and 6. It is true that the plaintiff did not comply with the deadline for filing an action pursuant to Section 4 sentence 1 KSchG by filing an action on June 13, 2022, as this deadline had already expired on June 7, 2022. This is because the period for bringing an action began to run when the letter of termination was received. In this case, the start of the period was not based on Section 4 sentence 4 KSchG, as the defendant was not yet aware of the plaintiff's existing pregnancy at the time of termination. Consequently, the plaintiff's action for protection against dismissal was in principle time barred.

However, the action for protection against dismissal that was filed late was to be admitted retrospectively in accordance with Section 5 (1) sentence 2 KSchG. Pursuant to Section 5 (1) sentence 1 KSchG, the action must be admitted retrospectively at the employee's request if an employee was prevented from filing the action within three weeks of receipt of the written notice of termination despite exercising all due care in the circumstances. Pursuant to Section 5 (1) sentence 2 KSchG, the same applies if a woman only becomes aware of her pregnancy after the expiry of the period for filing an action pursuant to Section 4 sentence 1 KSchG for a reason for which she is not responsible. In the present case, the plaintiff only gained positive knowledge of the fact that she was pregnant when she received the notice of termination on May 14, 2022, for a reason for which she was not responsible, at the earliest possible gynecological examination on June 17, 2022. The pregnancy test carried out just over two weeks earlier on May 29, 2022, could not have given her this knowledge. Such positive knowledge of an employee of her pregnancy could only be assumed after this pregnancy had been confirmed by a doctor. The fact that the doctor's appointment was delayed could also not be attributed to the employee. In the interpretation made by the Senate, the existing system of Sections 4, 5 KSchG and Section 17 (1) MuSchG satisfies the requirements of the Maternity Protection Directive (Directive 92/85/EEC), as elaborated by the Court of Justice of the European Union in the "Haus Jacobus" case (see ECJ judgment of 27.06.2024 - C-284/23).

C. Practical note

With its ruling, the Federal Labour Court clarifies that pregnant employees can still admissibly file an action for protection against dismissal if they only become aware of their pregnancy after the three-week deadline for filing an action by visiting a gynecologist. In such cases, the action for protection against dismissal must be admitted retrospectively despite the time limit. A positive pregnancy test is not sufficient for the employee to have certain knowledge of her pregnancy, nor can she be blamed for a delay in the gynecologist appointment.

With its ruling, the Federal Labor Court shows that it attaches greater importance to the protection of pregnant women and statutory maternity protection than to formal compliance with the deadline for filing a complaint pursuant to Section 4 sentence 1 KSchG, which ultimately serves the purpose of legal certainty. In its ruling, it specifies the principles that apply when applying Section 5 (1) sentence 2 KSchG in a welcome manner.

The publication of the full reasons for the ruling remains to be seen.