This post was also contributed by Tony Rau, Trainee, Norton Rose Fulbright LLP (Munich).
German law provides for extensive protection of pregnant employees and employees on leave in connection with pregnancy. Regarding the latter, German law distinguishes between maternity leave (i.e. 6 weeks before until 8 weeks after childbirth – or 6 weeks before until 12 weeks after childbirth in certain cases) and parental leave (i.e. longer periods of leave granted after childbirth in order to care for newborns or children). The relevant rules are primarily aimed at protection against dismissal, but also protect against, for example, certain working conditions unfit for pregnant women, and are applicable irrespective of whether the employee is employed on a full or part time basis or for an indefinite or fixed-term period. Although not specifically tailor-made for such cases, these rules also apply in the event of a redundancy.
Protection of Pregnant Employees and Protection during Maternity Leave
Under German employment law, employees enjoy special protection against dismissal in connection with pregnancy and may not be dismissed during pregnancy or during the four months after childbirth, which – due to a recent change in German legislation – now also applies to employees who have had a miscarriage after week 12 of pregnancy. However, this only applies if at the time of the dismissal, the employer has knowledge of the pregnancy, childbirth or miscarriage or is informed thereof within two weeks after receipt of the notice letter by the employee or, without undue delay, if the employee is not responsible for the delay.
As an exception and upon request of the employer, in special cases a dismissal during the protected time periods referred to above may be declared permissible by the competent authority, but only if the reason for dismissal is not in connection with the employee’s pregnancy. German labor courts accept such a special case only if exceptional circumstances require that the interests of the employer should override those of the pregnant employee. In addition to conduct-related reasons (for example, criminal acts), German courts also accept operational reasons as a special case as long as it is not possible for the employer to continue the employment, for example in the case of an operational shutdown and if the employee cannot be redeployed elsewhere. The employer carries the burden of proof in this regard.
Additional protection afforded to pregnant employees, although not specifically relevant to redundancy situations, include restrictions regarding hardship and maternity leave (i.e. employees are not allowed to work during the period 6 weeks before and 8 weeks after childbirth, which increases to 6 weeks before and 12 weeks after childbirth in certain cases).
Protection of Employees on Parental Leave
After the birth of the child, German employment law entitles parents to take parental leave. It may be taken by either parent for a duration of up to three years up to the child’s third birthday, while a period of up to 24 months may be taken between the child’s third and eighth birthday. During parental leave, employees enjoy similar protection against dismissal as in connection with pregnancy. The employer may not dismiss the employee following the making by an employee of a request for parental leave, noting that such protection against dismissal applies no earlier than 8 weeks before the commencement of parental leave before the child’s third birthday or 14 weeks before the commencement of parental leave requested for any period between the child’s third and eighth birthday. Again, upon request of the employer, the competent authority may in special cases declare a dismissal permissible. Substantially the same grounds for dismissal are recognised by German courts as for an employer’s request for dismissal of an employee in connection with pregnancy (see above) which have been laid down in detail in administrative provisions.
Consideration of Employees in Connection with Pregnancy and Employees on Leave Periods during Redundancy Preparation
In business units with more than ten employees (more than five if hired before 31 December 2003), and if an employee has been with the company for more than six months, a specific justification for any dismissal is required. Redundancy qualifies as a sufficient justification in this sense. The requirements of a redundancy are fulfilled if the workplace of the affected employee no longer exists for operational reasons and if it is not possible to offer suitable alternative employment. The employer needs to compare all employees who are “exchangeable” and carry out a so-called “social selection” on the basis of certain criteria (length of service, age, maintenance obligations, severe disability). The employer may then dismiss only those employees who require the least “social protection”, i.e. have been at the company for only a short period, have no family, are young enough to find alternative jobs, etc. Employees who enjoy the aforementioned special protection against dismissal are to be included in such social selection, if the competent authority has declared the dismissal permissible.
For more information on employees’ rights on redundancy in Germany please see our previous post.
For more information on recent changes in particular of the German Maternity Protection Act (Mutterschutzgesetz – MuSchG) please see our previous post.