Germany: Subsequent Admission of Legal Action of Pregnant Employee

If, through no fault of her own, an employee only becomes aware of an existing pregnancy after the deadline for bringing a dismissal protection claim has expired, she may request that the claim be admitted retrospectively.

Under German law, a dismissal protection claim has to be brought within three weeks from the dismissal. In the case at hand, the already dismissed employee took a pregnancy test which returned a positive result within such three-week period but was only able to get a doctor’s appointment for a point in time outside the deadline. She subsequently – i.e., outside the deadline – filed a lawsuit against unfair dismissal and at the same time applied for the lawsuit to be admitted retroactively.

The employee believes that the action for protection against dismissal should be accepted with retroactive effect. However, the employer argued that she had become aware of her pregnancy within the timeframe for taking legal action due to the positive pregnancy test result.

The Federal Labour Court admitted the claim even though it had been submitted after the deadline. It held that as home pregnancy tests do not provide information about the start date of a pregnancy, only a doctor’s confirmation can be considered authoritative. The employee could not be held responsible for not being able to visit her doctor earlier. The termination was subsequently deemed invalid due to a violation of the prohibition of termination during pregnancy.