Retrospective admission of legal action with unrecognised pregnancy

If an employee wishes to assert that a dismissal is socially unjustified or legally invalid for other reasons, he/she must file a complaint within three weeks of receiving the notice of dismissal in accordance with Section 4 sentence 1 of the German Employment Protection Act (KSchG). However, an action may also be brought at the request of an employee in accordance with Section 5 (1) sentence 2 of the German Employment Protection Act (KSchG) if she only became aware of her pregnancy after the deadline had expired for reasons beyond her control.

This was also the case in the current Federal Labour Court ruling from April 2025: the plaintiff received notice of ordinary dismissal from her then employer on 14 May 2022. After taking a pregnancy test on 29 May 2022 with a positive result, she immediately sought an appointment with a gynaecologist, but could only get one on 17 June 2022. On 13 June 2022, she filed an action for unfair dismissal with the Dresden Labour Court together with an application for retrospective admission. The following week, she also submitted a medical certificate confirming that she was pregnant on 17 June 2022. According to the mother’s maternity log, the pregnancy was assumed to have begun on 28 April 2022, i.e. more than three weeks before the notice of dismissal.

“As a rule, the employee will only have positive knowledge of the existence of a pregnancy (…) on the basis of the corresponding result of a medical examination.” [1]

The defendant was of the opinion that, based on the positive test on 29 May 2022, the plaintiff became aware of the pregnancy within the three-week period specified in Section 4 (1) of the German Employment Protection Act (KSchG) and that Section 5 (1) (2) KSchG was therefore not applicable. However, the 2nd Senate of the Federal Labour Court took a different view. Due to the violation of the prohibition of dismissal under Section 17 (1) no. 1 of the Maternity Protection Act (MuSchG), the dismissal was invalid. Since the plaintiff only became aware of her pregnancy on 17 June 2022 for reasons beyond her control, her delayed action was to be admitted retrospectively in accordance with Section 5 (1) sentence 2 of the German Employment Protection Act (KSchG). In any case, the test carried out independently did not inform her of the pregnancy.

Is the protective purpose of Section 17 of the Maternity Protection Act fulfilled?

Section 17 of the Maternity Protection Act is intended to protect the health of the mother and child from additional emotional stress caused by dismissal proceedings.[2] The fact that this purpose could not be fulfilled in the present case due to the almost three years of proceedings in three instances shows the importance of a clear line taken by the Federal Labour Court, which gives hope for the future. On the other hand, Section 5 (1) sentence 2 of the German Employment Protection Act (KSchG) fulfilled its purpose of compensating for individual hardship [3] in a textbook manner. From an employer’s perspective, the lesson to be learned is that it is always worth keeping a record of the dismissal and communication with the employee. They must also be prepared for the fact that a late notification of pregnancy can still be effective.

[1] Federal Labour Court 3 April 2025 – 2 AZR 156/24, NZA 2025, 700 margin note 25 25.

[2] ErfK/Schlachter, Maternity Protection Act Section 17, margin note 1 1.

[3] ErfK/Schlachter, Maternity Protection Act Section 5, margin note 6 6.