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Things you shouldn’t tell your boss

Pursuant to section 9 paragraph 1 sentence 1 of the Maternity Protection Act, the dismissal of a pregnant employee without consent of the competent state authority is void if the employer is aware of the pregnancy when giving notice or if he is notified of the pregnancy within two weeks after the employee receives the notice.

Recently, the Federal Labour Court (26 March 2015 – 2 AZR 237/14) ruled that in respect of pregnancies resulting from in vitro fertilization, this special protection against termination applies as soon as the fertilized ovum is implemented (embryo transfer), rather than only after a successful implantation. Additionally, the court stated that even outside the scope of the Dismissal Protection Act, a dismissal is void if it is based on an intended in vitro fertilization and the possibility of a pregnancy as a consequence thereof.

In the underlying case, the defendant operates an insurance company with a total of two employees. (The Dismissal Protection Act only applies to businesses with more than ten employees.) One of them is the plaintiff who has been employed as an office supervisor since February 2012. In the past, the defendant spoke highly of the plaintiff’s performance. She has never received any warnings or admonitions. Either on 14 or 15 January 2013, she told the defendant in a private conversation that for years she had had an unfulfilled desire to have a child, and that she planned on trying another in vitro fertilization soon. The embryo transfer took place on 24 January 2013. Without the consent of the competent state authority, the defendant issued a termination notice on January 31 2013, which the plaintiff received on the same day. After that, the defendant filled the now vacant position with an employee older than the plaintiff. On 7 February, the plaintiff’s pregnancy was discovered. She informed the defendant on 13 February 2013. The plaintiff’s daughter was born on 1 October 2013.

The court ruled that the dismissal is void. According to the court, since the embryo transfer took place before she received the termination notice, the plaintiff benefited from the special termination protection pursuant to section 9 paragraph 1 sentence 1 of the Maternity Protection Act. The defendant unsuccessfully argued that the a pregnancy only begins with implantation. His claim that the dismissal was based on the plaintiff’s unsatisfying performance also did not sway the court in his favour. Based on all the relevant circumstances, the previous court (Higher Labour Court of Saxon) rightly concluded that the dismissal was motivated by the planned in-vitro fertilization and the possibility of a pregnancy as a consequence thereof.

Furthermore, the court stated that the dismissal violated section 7 paragraph 1 of the General Equal Treatment Act and is therefore void pursuant to section 134 of the Civil Code. On this aspect, the court referred to a decision of the European Court of Justice (26 February 2008 (C-505/06), in which it stated that a dismissal mainly based on the fact that the employee had an in vitro fertilization may constitute gender-based discrimination.

The outcome of the case is not surprising as it conforms with the view taken by the European Court of Justice. Employers should be very cautious when they are made aware of (planned) pregnancies of their employees even if they want to terminate an employment relationship for other reasons than the (planned) pregnancy.