Special protection against dismissal for mothers

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The special dismissal protection for pregnant women, being a part of the legal provisions for the protection of mother and child before and after childbirth for maternity leave .

Germany

The special protection against dismissal for pregnant women and young mothers in German labor law is regulated in Section 17 of the Mutterschutzgesetz (MuSchG). In addition (in exceptional cases) protection against discrimination according to the General Equal Treatment Act (AGG) can be considered. Mothers on parental leave enjoy (additional) protection against dismissal in accordance with Section 18 of the Federal Parental Allowance and Parental Leave Act (BEEG).

Protection against dismissal under the Maternity Protection Act

According to Section 17 MuSchG, an employee can only be effectively terminated during her pregnancy and up to four months after the delivery with the prior consent of the authority responsible for occupational safety in the respective federal state. Any notice of termination - of any kind - declared without consent is null and void ( Section 134 BGB).

Standard purpose

The purpose of the norm "of protection against dismissal under maternity protection law is to keep the job as an economic livelihood for the mother-to-be and the woman who has recently given birth despite their maternity-related reduction in performance or inability to work. At the same time, it should "protect against the psychological stress of dismissal protection proceedings".

Competitions

The protection against dismissal according to § 17 MuSchG exists - if necessary - in addition to the according to § 18 BEEG, § 168 SGB ​​IX or KSchG etc.

Personal scope

The special protection against dismissal in accordance with Section 17 (1) MuSchG applies to female employees, trainees and those who work from home. If a woman is only treated on an equal footing with those working from home, she only enjoys special protection against dismissal if the same treatment is also extended to the protection against dismissal provided by the HAG (Section 17 (1) sentence 2 MuSchG). In the following, only the employee is used as a representative.

Pregnancy or childbirth

At the time the notice of termination is received, the employee must be pregnant or the child must not be older than 4 months. A pregnancy after receipt of the notice of termination does not constitute any special protection against dismissal. An accidental pregnancy is just as little. Pregnancy can be proven at will. A medical certificate according to § 15 Abs. 2 MuSchG is most appropriate.

Protection against dismissal begins at the same time as pregnancy . According to the relevant case law of the Federal Labor Court (BAG), the following applies: “The start of pregnancy is determined by calculating back by 280 days from the medically determined expected delivery date (...). The pregnant woman therefore meets her burden of demonstrating the existence of a pregnancy at the time of termination by submitting the medical certificate stating the presumed date of delivery if the notice of termination is received within 280 days before this date. .. However, the employer can shake the evidential value of the certificate and present and prove circumstances on the basis of which it would contradict scientifically proven knowledge to assume that the employee will become pregnant before the dismissal can be granted. The employee then has to provide further evidence and, if necessary, is required to release her doctors from their duty of confidentiality. This prohibition of termination with reservation of permission only exists if the employer learns of the pregnancy and this discovery is timely. "

After the termination of the pregnancy, protection against dismissal only exists if delivery has taken place: “The term 'delivery' basically means the 'separation of the womb from the womb', which is completely unproblematic in the case of a live birth (...). In the case of a stillbirth, until 1994 it was spoken of as delivery if the fruit was 35 cm long (...). Following an amendment to the Personal Status Ordinance ( Section 29 Paragraph 2 PStV old version, valid from April 1, 1994; since January 1, 2009 Section 31 Paragraph 2 PStV) in accordance with the recommendations of the World Health Organization from 1977, children are now considered to be dead or in the Birth deceased if the weight of the womb was at least 500 g (see BAG December 15, 2005 - 2 AZR 462/04 - on BI 1 d of the reasons). Such a stillbirth is also to be regarded as a delivery. This also applies in the case of an abortion if the child had already developed to a stage in which it was basically capable of an independent life - even if only for a short time (see BAG December 15, 2005 - 2 AZR 462/04 - to BI 1 of the reasons). A stillborn womb with a body weight of less than 500 g, on the other hand, is considered a miscarriage, Section 31 (3) PStV, which does not mean childbirth within the meaning of the Maternity Protection Act. In the event of a miscarriage, the protection against dismissal only exists, but also until the point of separation of the womb from the womb. "

The death of the child after childbirth or his release for adoption do not remove the protection against dismissal. In 2016, the federal government introduced a bill that is intended to reform maternity protection law and also change the protection periods for miscarriages. According to the text of the draft, the law should come into force on January 1, 2017. This deadline could not be kept in the further course.

Termination by the employer

Section 17 (1) MuSchG covers all types of terminations, but only terminations. If the employee is employed on a fixed-term basis and if she becomes pregnant before the end of the fixed-term contract, this does not render the fixed-term contract ineffective.

Knowledge of the employer

The special protection against dismissal only exists if the employer knew about the pregnancy when submitting the notice of dismissal or found out about it in good time afterwards.

More specifically: The special protection against dismissal exists according to § 17 Abs. 1 S. 1 MuSchG only if

(a) the employer knew of the pregnancy at the time of the notice of termination; or
(b) the employee notifies the employer of the pregnancy within two weeks of receiving the notice of termination; or
(c) the employee exceeds the two-week period, but this is due to reasons beyond her control (in particular ignorance of the pregnancy) and the notification is made immediately.

How the pregnant woman informs the employer is optional. However, it should be done in such a way that the communication can be safely proven in the event that the employer denies the information. The notification does not have to be made personally by the pregnant woman. It can also be done by a person authorized by it. The notification can also be made in the context of an action for protection against dismissal, but the employer should be informed directly at the same time in order not to miss the above deadlines.

The “employer” is the employee's contractual partner. Knowledge of the employer's representatives, organs or personnel officers is attributed to the employer, so it is sufficient. It is not enough to report the pregnancy to a simple supervisor without personnel responsibility, the works council or the company doctor. Nor should one rely on “one” already passing on the information. The pregnant woman bears the risk.

If the pregnant woman does not meet the two-week deadline, a later notification is also possible in exceptional cases. However, only if the employee immediately after gaining knowledge ( § 121 BGB), i. H. inform the employer without undue hesitation. The employee is required to present and provide evidence that these requirements are met.

No approval from the supervisory authority

A termination without the consent of the supervisory authority is ineffective. It is "to be assumed ... that a declaration of admissibility by the occupational safety and health authorities must be available before the termination is issued". Such consent may only be given in special cases and is rare in practice. It is up to the employer to apply for it. The grant can be disputed in administrative law.

The employer can terminate the contract if the approval of the supervisory authority is not yet final. However, the pronounced termination becomes retrospectively ineffective if the declaration of admissibility is revoked following legal remedy. Until then it is effective in a pending manner.

“The declaration of the admissibility of a dismissal in accordance with Section 17 (2) sentence 1 MuSchG is a discretionary decision that requires a 'special case' in which exceptional circumstances, as an exception, allow the interests of the pregnant woman, which are regarded as priority by law, to subordinate those of the employer. Whether such a 'special case' exists can be fully checked in court, but is generally to be assumed in the case of shutdown (closure) of a company, unless the employee can be employed elsewhere in the company at a workstation that is suitable for her, i.e. transferred there. If this is not possible, the closure has the effect that a continuation of the employment relationship in accordance with its nature and meaning becomes impossible for factual reasons, so that consent to termination is justified and, as a rule, also required when exercising due discretion ”.

"When deciding whether the dismissal of an employee during the maternity protection period due to a closure of a company according to Section 9 (3) MuSchG is exceptionally declared permissible, it is not necessary to examine - apart from any obvious cases - whether the alleged closure is instead a transfer of business in the sense of S. d. § 613a BGB. "

Written form and obligation to give reasons

The termination must be in writing ( Section 17 Paragraph 3 Sentence 2 MuSchG), as is now the case with any termination ( Section 623 BGB).

According to Section 17 (3) sentence 2 MuSchG, there is an - otherwise unusual - obligation to give reasons when dismissing a protected employee:

“9 Paragraph 3 Clause 2 stipulates a statutory written form requirement within the meaning of Section 126 BGB. However, this special statutory requirement of the written form goes beyond the written form requirement generally standardized for terminations by § 623 BGB, since the permissible reason for termination must be communicated in the termination letter. This is the reason for the termination on which the competent authority bases its declaration of admissibility. The specification of the facts necessary for the legal assessment of this reason for termination is a prerequisite for effectiveness (...). According to Section 9 (3) sentence 2 MuSchG, the termination must indicate the reason for the termination. This means that the termination and justification must be summarized in a single declaration. In this respect, the principles of unity of documents apply. The form of Section 9 (3) sentence 2 is therefore not maintained if the termination and the reason are contained in two different declarations ”.

Three-week period for legal action (§ 4 KSchG)

Even an absolutely protected employee must declare the ineffectiveness of a dismissal within the three-week period for legal action according to § 4 KSchG (ordinary dismissal) or § 13 para. 1 sentence 1 i. V. m. Assert § 4 KSchG (extraordinary termination). This also applies if the employee only learns of her pregnancy after receiving the notice of termination. The period for filing the action is not inhibited or interrupted by the employee's notification to the employer after the termination notice that she is pregnant. If the deadline for filing a complaint is not met, the termination is deemed to be legally effective from the start.

In the normal case of § 4 sentence 1 KSchG, the period of action begins with the receipt of the notice of termination. If the termination - as in the case of a protected employee - requires the approval of an authority, the period of action only begins with the notification of the declaration of admissibility to the employee. But only if the employer was aware of the pregnancy or the delivery. Otherwise it remains with the regulation of § 4 sentence 1 KSchG.

If the employee has not met the three-week deadline for filing a complaint in accordance with § 4 KSchG or §§ 4, 13 KSchG, subsequent admission in accordance with § 5 KSchG may be considered.

"According to Section 5, Paragraph 1, Clause 1 of the KSchG, a dismissal protection action is to be subsequently admitted if the employee was prevented from filing the action within three weeks of receipt of the written notice of termination despite all the care that could be expected of her under the circumstances. The same applies in accordance with Section 5 (1) sentence 2 KSchG if a woman only became aware of her pregnancy for reasons beyond her control after the deadline of Section 4 sentence 1 KSchG. The purpose of the regulation is to give a dismissed employee the opportunity to subsequently bring an action for protection against dismissal because she has failed to meet the deadline for legal action due to simple ignorance through no fault of her own. So individual hardships should be compensated. "

The case law is - as in general with § 5 KSchG - restrictive in case of doubt.

  • "If an employee refrains from filing an action for protection against dismissal because the employer has promised her a severance payment, which, however, will not be paid due to later failed settlement negotiations, this is not a circumstance that can justify subsequent admission of an action."
  • "An action for protection against dismissal may be subsequently admitted if the employer fraudulently prevents an employee from filing a lawsuit or if the employee is induced to refrain from filing a lawsuit with the aim of continuing the employment relationship with reference to a withdrawal of the dismissal. If the employer writes to the employee that he will no longer derive any rights from the termination and offers the continuation of the employment relationship under the previous conditions, he does not fraudulently prevent the employee from filing an action for protection against dismissal. "

Maternity protection according to the AGG

In the case of maternity protection under the AGG, a distinction must be made between protection against dismissal and a payment claim under Section 15 AGG.

Indirect protection against dismissal through the AGG in the event of gender discrimination

According to Section 2 (4) AGG, the AGG does not apply to terminations. The jurisprudence disregards this in conformity with the directive: The prohibitions of discrimination of the AGG including the justifications provided for in the law for different treatments in the interpretation of the indefinite legal terms of the Dismissal Protection Act are to be observed in the way that they represent concretizations of the concept of social abuse. If an ordinary termination violates the prohibitions on discrimination of the AGG, this can lead to the social unlawfulness of the termination according to § 1 KSchG. If the KSchG is not applicable, it becomes ineffective according to §§ 242, 138 BGB.

In addition to the comprehensive protection against dismissal under § 17 MuSchG, dismissal protection i. V. m. AGG hardly practical.

It would be possible, for example, that in the case of a stillbirth (see above) there is no delivery within the meaning of Section 17 MuSchG and therefore not the protection of Section 17 MuSchG, if the employer uses this (and any complications) as a reason to dismiss.

Compensation and damages according to § 15 AGG in the case of discriminatory termination

The BAG has decided in the dispute as to whether Section 2 (4) AGG excludes the applicability of Section 15 AGG in the case of dismissals that discriminate against sex , to the effect that this is not the case.

Claims from § 15 AGG presuppose a breach of the prohibition of discrimination in § 7 AGG, whereby the employee can benefit from the burden of proof regulation of § 22 AGG. The deadlines of Section 15 Paragraph 4 AGG and Section 61b Paragraph 1 ArbGG must be observed cumulatively.

Section 15 AGG distinguishes between the “claim for damages” based on Section 15 (1) AGG and the “compensation claim” based on Section 15 (2) AGG. In the event of dismissals, the focus is on the right to compensation in accordance with Section 15 (2) AGG.

Compensation according to Section 15 (2) AGG

"In the event of discriminatory terminations, regardless of Section 2 Paragraph 4 AGG, a claim for compensation for immaterial damage in accordance with Section 15 Paragraph 2 AGG is possible."

"The characteristic-related burden in connection with the issuance of a notice of termination leads in any case to a claim for compensation if it goes beyond the normal range."

  • This can be answered in the affirmative in individual cases if a termination violates Section 17 (1) sentence 1 MuSchG and occurs “at an inopportune time”. “The employer declares a termination 'at the wrong time' if he sends it to an employee on the evening before a hospital stay, where - known to the employer - she has to have an artificial abortion carried out. The type of infidelity is in turn discriminatory on a gender-specific basis. "
  • The termination of a pregnant employee, on the other hand, is not discriminatory if the employer has given notice of termination in ignorance of the pregnancy. "The employer's adherence to the notice of termination after becoming aware of the pregnancy does not constitute discrimination on account of gender if the employee concerned does not contribute to an out-of-court settlement herself." If the employer acknowledges the ineffectiveness of the termination in the chamber meeting , then (in individual cases) there is no indication i. S. d. 22 AGG.
Compensation for damages in accordance with Section 15 (1) AGG

The BAG leaves open the extent to which a claim for compensation for material damage in the event of discriminatory dismissals of pregnant women and young mothers can result from Section 15 (1) AGG: “It is not to be decided whether further claims for compensation for material damage are made in the case of discriminatory termination matters Section 15 (1) AGG can be considered. In principle, in the event of termination found to be ineffective, the material damage, as far as the termination itself is concerned, is compensated by way of in rem restitution; for further material consequences of termination, the bases of claims under civil law have always been available regardless of Section 15 (1) AGG, e.g. § 615 BGB. "

France

Protection against dismissal

In France, the Code du travail differentiates between two protection periods in which the pregnant woman enjoys special protection against dismissal and may only be terminated in exceptional cases due to gross misconduct or the impossibility of maintaining the employment relationship (e.g. if the specific position is cut for operational reasons), cf. . Articles L. 1225-4, al. 2, phr. 1 , L. 1225-4-1, al. 2 and L. 1225-5, al. 2 C. trav. Ordinary termination is therefore impossible and the possibility of termination for operational reasons is severely limited.

The absolute protection period ( période de protection absolue ) extends according to Article L. 1225-4, al. 1 C. trav. the period during which the pregnant woman is entitled to maternity leave . This usually starts six weeks before the predicted delivery date and lasts until the tenth week after delivery. In the case of multiple births and from the third child, the maternity leave is extended. During this time, a declaration of termination by the pregnant woman according to Article L. 1225-4, al. 2, phr. 2 C. trav. will not be delivered and a termination will not take effect. The prohibition also extends to the implementation of preparatory actions for the termination, such as B. the invitation to a termination interview. The pregnant woman is absolutely protected here . The ratio legis behind this is to protect the pregnant woman from the psychological consequences of dismissal.

The relative protection period ( période de protection relative ) begins with the pregnancy itself and ends according to Article L. 1225-4, al. 1 C. trav. ten weeks after the end of the absolute protection period. If the pregnant woman takes paid leave during this period, the deadline is suspended and the end of the protection period shifts to the day on which work is resumed. During this protection period, the pregnant woman may not be terminated, cf. also Article L. 1225-4, al. 1 C. trav. If the employer had no knowledge of the pregnancy, the termination declared in good faith is generally effective as long as the pregnant woman does not submit a medical certificate of the pregnancy within a period of 15 days, Article L. 1225-4, al. 1 C. trav. . The protection against dismissal is only relative here .

Claims of employees in the event of violations

If the employer violates the regulations on the special protection against dismissal of pregnant women, the termination according to Article L. 1225-71 , Article L. 1235-3-1, al. 1, phr. 1; al. 8 (° 6) C. trav. ineffective ( nullité ). The pregnant woman has then according to Article L. 1235-3-1, al. 1, phr. 2 C. trav. Either right to re-employment or to compensation of at least six monthly salaries. In both cases, according to Article L. 1235-3-1, al. 9 C. trav. the entitlement to the salary that she would have received at the time of the invalid termination is not affected.

The level of protection corresponds to that of the special protection against dismissal of the employee injured by an occupational accident during the suspension of the employment relationship.

See also

Individual evidence

  1. ↑ BAG, judgment of March 31, 1993 - 2 AZR 595/92 - juris Rn. 22 = AP No. 20 to Section 9 MuSchG 1968
  2. ↑ BAG, judgment of March 31, 1993 - 2 AZR 595/92 - juris Rn. 22 = AP No. 20 to Section 9 MuSchG 1968
  3. ↑ BAG, judgment of March 31, 1993 - 2 AZR 595/92 - AP No. 20 on § 9 MuSchG 1968
  4. ↑ BAG, judgment of 07.05.1998 - 2 AZR 417/97 - juris principle = NJW 1999, 1804
  5. ↑ BAG, judgment of 12.12.2013 - 8 AZR 838/12 - juris Rn. 28 = NZA 2014, 722
  6. ↑ Process of the law on the new regulation of maternity protection law in the DIP
  7. ↑ BAG, judgment of March 31, 1993 - 2 AZR 595/92 - juris Rn. 25th
  8. ^ OVG Sachsen, judgment of October 22, 2013 - 5 A 877/11 - juris Rn. 21; BAG, ruling v. June 17, 2003 - 2 AZR 245/02 -, juris Rn. 21 to 23 = NZA 2003, 1329 (1330) and Ls.
  9. ^ OVG Sachsen, judgment of October 22, 2013 - 5 A 877/11 - juris Rn. 21 with reference to BVerwG, ruling v. Aug. 18, 1977 - VC 8.77 - juris Rn. 16, 17 u. 20; see. on § 18 BEEG: BVerwG, ruling v. September 30, 2009 - 5 C 32.08 -, juris Rn. 15 ff.
  10. ^ So OVG Sachsen, judgment of October 23, 2013 - 5 A 877/11 - juris guiding principle
  11. ↑ ArbG Nürnberg, judgment of February 22nd, 2010 - 8 Ca 2123/09 - juris Rn. 31 mwN
  12. ↑ BAG, judgment of February 19, 2009 - 2 AZR 286/07 - NZA 2009, 980 Os.
  13. ↑ BAG, judgment of February 19, 2009 - 2 AZR 286/07 - juris Rn. 27 ff. = NZA 2009, 980
  14. ↑ BAG, judgment of February 19, 2009 - 2 AZR 286/07 - juris Rn. 31 = NZA 2009, 980
  15. ↑ BAG, judgment of February 19, 2009 - 2 AZR 286/07 - juris Os., Rn. 41 = NZA 2009, 980
  16. ↑ BAG, judgment of February 19, 2009 - 2 AZR 286/07 - juris Os., Rn. 43 = NZA 2009, 980
  17. ↑ BAG, judgment of 12.12.2013 - 8 AZR 838/12 - juris Rn. 18 = NJW 2014, 2061
  18. ↑ BAG, judgment of 12.12.2013 - 8 AZR 838/12 - juris Rn. 18 = NJW 2014, 2061
  19. ↑ BAG, judgment of 12.12.2013 - 8 AZR 838/12 - juris guiding principle = NJW 2014, 2061
  20. ↑ BAG, judgment of 12.12.2013 - 8 AZR 838/12 - juris guiding principle = NJW 2014, 2061
  21. ↑ BAG, judgment of 12.12.2013 - 8 AZR 838/12 - juris Obersatz = NJW 2014, 2061
  22. ↑ BAG, judgment of October 17, 2013 - 8 AZR 742/12 - juris Os. = NJW 2014, 1032 = JuS 2015, 178 (Boemke)
  23. ↑ BAG, judgment of October 17, 2013 - 8 AZR 742/12 - juris Rn. 33 = NJW 2014, 1032
  24. ↑ BAG, judgment of 12.12.2013 - 8 AZR 838/12 - juris Rn. 20 = NJW 2014, 2061
  25. ↑ a b c Direction de l'information légale et administrative (Premier ministre): Licenciement d'une salariée enceinte ou en congé de maternité. In: Service Public - Le site officiel de l'administration francaise. October 17, 2018, accessed January 22, 2019 .
  26. ^ Cour de cassation, Chambre sociale: Arrêt du 15 September 2010, 08-43.299. In: Légifrance - Le service public de la diffusion du droit. September 15, 2010, accessed January 25, 2019 .
  27. ↑ Cour de cassation, Chambre sociale: Arrêt du 30 avril 2014, 13-12.321. In: Légifrance - Le service public de la diffusion du droit. April 30, 2014, accessed January 22, 2019 .