Judgement of the Cologne Regional Labour Court of 17 April 2025 (Ref. 6 SLa 542/24)
Legal certainty in the event of dismissal and pregnancy: clarification of employees' duty of notification
The recent judgement of the Cologne Regional Labour Court focused on the question of the conditions under which the special protection against dismissal for pregnant women under Section 17 of the Maternity Protection Act (MuSchG) is effective - particularly in conjunction with the provisions of the Protection Against Dismissal Act (KSchG). The judgement is of great importance for employers and employees alike, as it specifies key aspects of the duty to notify in good time and the time limits for taking legal action.
As a law firm specialising in employment law in Cologne, we would like to explain the legal background, the court's reasoning and the practical implications of this ruling in a structured manner.
1. facts of the case - termination during (alleged) pregnancy
The plaintiff, a veterinary assistant, received ordinary notice of termination on 27 July 2023. It was not until more than four months later, on 15 December 2023, that she filed an action for protection against dismissal, invoking the special protection against dismissal under Section 17 MuSchG. She claimed to have been pregnant at the time of the dismissal. She had previously reported the pregnancy - albeit initially mathematically - by means of certificates and notifications.
The defendant employer denied both the pregnancy at the time of termination and proper notification thereof.
2. legal assessment - requirements for special protection against dismissal (§ 17 MuSchG)
Pursuant to Section 17 (1) MuSchG, the dismissal of a woman during pregnancy is invalid if the employer was aware of the pregnancy at the time of the dismissal or is notified within two weeks of receipt of the dismissal. This protection against dismissal also applies if the employer is not subject to the general protection against dismissal (e.g. in companies with fewer than ten employees, as in this case).
The LAG Cologne is based on the following key points:
a. Calculated vs. biological pregnancy
The case law of the Federal Labour Court (BAG) assumes that a pregnancy begins arithmetically 280 days before the expected date of delivery (BAG, judgement of 24 November 2022 - 2 AZR 11/22). This purely mathematical consideration is only sufficient for protection against dismissal if the employer becomes aware of this specific pregnancy in good time.
In the present case, the first medical certificate indicated a date of birth that would have mathematically established a pregnancy only after receipt of the notice of termination (30 July 2023) - i.e. too late.
b. Obligation to notify: "This" pregnancy must be notified
The court expressly emphasises that it is not sufficient for the employee to have notified any pregnancy at any time - rather, the specific pregnancy existing at the time of termination must be notified. An earlier pregnancy that later turns out to be a miscarriage, for example, does not provide protection for a new pregnancy that started later, even if the two notifications are close together.
The notification of 17 July 2023 demonstrably did not refer to the pregnancy that led to the birth in May 2024. Subsequent certificates, which mathematically suggested an existing pregnancy at the time of termination, were also only sent weeks to months after receipt of the notice of termination - and therefore not in due time within the meaning of Section 17 (1) MuSchG.
c. No knowledge, no communication, no protection
The LAG Cologne therefore stated:
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On 27 July 2023, the employer had no knowledge of the pregnancy, which was relevant in retrospect,
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a notification was not made within the two-week period following receipt of the cancellation,
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and an "immediate catch-up" of the notification (§ 17 para. 1 sentence 2 MuSchG) due to a non-culpable impediment was not made credible.
3. action for protection against dismissal too late - legal consequence: dismissal is deemed effective (§ 7 KSchG)
According to Section 4 KSchG, an action for protection against dismissal must be filed within three weeks of receipt of the notice of dismissal. If this period expires without an action being filed, the dismissal is deemed by law to have been effective from the outset (Section 7 KSchG).
In this case, the action was filed more than four months late. An application for retrospective admission of the action pursuant to Section 5 KSchG was only filed in the appeal instance - and was therefore also late and inadmissible.
The LAG also clarified that even depression, as claimed by the plaintiff, was not sufficiently concrete and credible to be recognised as a non-culpable reason for hindrance within the meaning of Section 5 KSchG.
4. considerations under European law: Protection only begins with biological pregnancy
The plaintiff argued with the European protection concept for pregnant women (Directive 92/85/EEC). However, the LAG Cologne clarified:
The concept of pregnancy under European law is to be understood biologically - i.e. only from actual fertilisation. A "mathematical" pregnancy without a biological background is not sufficient for protection under EU law (see ECJ, judgement of 26 February 2008 - C-506/06).
Since, according to medical findings, the plaintiff was still pre-ovulating at the time of termination, the pregnancy was not protected under EU law.
Conclusion for practice - What does this judgement mean for you as an employer or employee?
For female employees:
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Protection against dismissal only exists with timely and concrete notification of the existing pregnancy.
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A blanket or older notification is not sufficient.
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The deadline of three weeks must be observed - if you fail to do so, the cancellation is usually finally effective.
For employers:
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The notification of pregnancy must be unequivocal and current in order to trigger protection against dismissal.
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A cancellation may be effective if the notification is not made in due time or does not refer to the specific pregnancy.
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If there are any doubts about a pregnancy notification, legal advice should be sought at an early stage.
Your contact for employment law in Cologne - specialised advice on dismissal, pregnancy and maternity protection
As a specialist lawyer for labour law in Cologne, I provide you with sound and solution-oriented support in all matters relating to:
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Protection against dismissal and maternity protection (§ 17 MuSchG)
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Failure to meet deadlines (§ 4, § 5, § 7 KSchG)
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Subsequent admission of the action
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Advice for employers on legally compliant dismissal
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Representation of employees in sensitive maternity protection cases
Source: LAG Cologne
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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