Book an appointment

Labor Law: Special Protection Against Dismissal Regulated in the Maternity Protection Act for In Vitro Fertilization

  • Last updated

Federal Labor Court, March 26, 2015, Ref.: 2 AZR 237/14

A special Protection against dismissal This applies, among others, to works council members and persons of equal status (§§ 15 IV, 5 KSchG), pregnant women (§ 9 MuSchG), persons entitled to parental leave (§ 18 BerzGG) and severely disabled persons.

Some of these regulations make dismissals subject to approval by authorities. For example, § 85 Social Code IX (SGB IX) stipulates that the dismissal of a severely disabled person’s employment by the employer requires prior approval from the Integration Office.

In the case of pregnant women, the authority responsible under the respective state law must approve an employer’s dismissal upon request (§ 9 III 1 MuSchG), provided that the employer was aware of the pregnancy at the time of dismissal or was informed of it within two weeks of receiving the notice of dismissal.

Without this approval, dismissal is generally prohibited under § 9 (1) Sentence 1 MuSchG.

However, it is questionable whether maternity protection in the case of fertilization outside the body (in vitro fertilization) already applies from the time the fertilized egg is implanted (so-called embryo transfer) or only after its successful implantation (nidation).

The Federal Labor Court had to decide on this issue in the present case.

Facts

The plaintiff had been employed in an insurance agency as one of two employees since February 2012. Until her dismissal, she had no Cautions or warnings for poor performance. In mid-January 2013, she informed her employer, the defendant, that she had been suffering from an unfulfilled desire to have children for several years and would undergo another attempt at artificial insemination. On 24 January 2013, the embryo transfer took place and on 31 January 2013, the defendant gave her ordinary notice of termination without obtaining official approval. The plaintiff's position was subsequently filled by an older employee. On 7 February 2013, it emerged that the plaintiff was pregnant, which she informed the defendant of on 13 February 2013.

Ruling of the Federal Labor Court

The Federal Labor Court confirmed the rulings of the lower courts and also declared the dismissal invalid. The plaintiff was under the special protection of § 9 (1) Sentence 1 MuSchG at the time of dismissal, which grants special protection against dismissal to pregnant employees. Furthermore, the dismissal violated the prohibition against discrimination under the General Equal Treatment Act (AGG), as the dismissal was related to the planned pregnancy and the in vitro fertilization.

Decision of the Federal Labor Court

The Federal Labor Court confirmed the rulings of the lower courts and also declared the dismissal invalid. The plaintiff was under the special protection of § 9 (1) Sentence 1 MuSchG at the time of dismissal, which grants special protection against dismissal to pregnant employees. Furthermore, the dismissal violated the prohibition against discrimination under the General Equal Treatment Act (AGG), as the dismissal was related to the planned pregnancy and the in vitro fertilization. Reference to European Law The Federal Labor Court referred to a ruling of the European Court of Justice (ECJ) from February 26, 2008 (C-506/06). In this ruling, the ECJ determined that a dismissal based on participation in in vitro fertilization could constitute direct discrimination based on gender.

Conclusion

The court followed this jurisprudence and concluded that the dismissal in the case was directly related to the plaintiff’s planned artificial fertilization and potential pregnancy, which constituted discrimination.

Source: Federal Labor Court

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.

If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.

Lawyers in Cologne advise and represent you in labour law.

Picture of Helmer Tieben

Helmer Tieben

I am Helmer Tieben, LL.M. (International Tax), a lawyer who has been admitted to the Cologne Bar Association since 2005. I specialise in landlord and tenant law, employment law, migration law and digital law and advise both local and international clients. With a Master's degree from the University of Melbourne and many years of experience in leading law firms, I offer clear and effective legal solutions. You can also contact me via
Reach Xing Helmer Tieben
and about X: Helmer Tieben.

Linkedin

One Response

  1. Pingback: Insertion of the fertilised egg during in vitro fertilisation justifies protection against dismissal - Personal-Wissen.de

Leave a Reply

Your email address will not be published. Required fields are marked *

Table of Contents

Related articles
Categories