When does protection against dismissal during pregnancy begin?
The prohibition of dismissal under sec. 17 (1) sentence 1 no. 1 of the German Maternity Protection Act (Mutterschutzgesetz, MuSchG) starts on the 280th day before the expected date of delivery. The starting date is calculated by counting back 280 days from the delivery date stated in the medical certificate, without counting the day of delivery itself. The Federal Labour Court put this in the operative holding of its judgment of 24 November 2022 (2 AZR 11/22):
„Das Kündigungsverbot aus § 17 Abs. 1 Satz 1 Nr. 1 MuSchG beginnt 280 Tage vor dem voraussichtlichen Entbindungstermin.“
“The prohibition of dismissal under sec. 17 (1) sentence 1 no. 1 MuSchG begins 280 days before the expected date of delivery.”
Federal Labour Court, judgment of 24 November 2022 — 2 AZR 11/22, operative holding — our translation
The figure of 280 days is not an estimate of the actual date of conception but a method of calculation. It corresponds to ten lunar months of 28 days each, counted from the first day of the last menstrual period, and marks the outermost limit within which a pregnancy can exist with a normal cycle. The Federal Labour Court deliberately rejected calculation based on the average duration of pregnancy (266 days), because that method would leave some genuinely pregnant employees outside the scope of protection.
The difference decides cases. In 2 AZR 11/22 the certificate gave 5 August 2021 as the expected date of delivery. Counting back 280 days produced 29 October 2020 as the start of protection, and the notice of dismissal was received on 7 November 2020 — so the employee was already protected. Under the 266-day method protection would have begun only on 12 November 2020, five days after the dismissal.
Protection is not limited to pregnancy itself. Sec. 17 (1) sentence 1 MuSchG extends it to the period of up to four months after a miscarriage occurring after the twelfth week of pregnancy (no. 2) and to the protection period after childbirth, at least four months from delivery (no. 3). The prohibition of dismissal must be distinguished from the prohibition on employment after a miscarriage, which sec. 3 (5) MuSchG grades according to the week of pregnancy.
Is the dismissal valid if the employer did not know about the pregnancy?
No, provided the employer learns of it within two weeks of receipt of the notice. Sec. 17 (1) sentence 1 MuSchG treats two situations alike: the employer already knew about the pregnancy when giving notice, or is informed of it within two weeks after the notice is received. In both cases the dismissal is impermissible and therefore void under sec. 134 of the German Civil Code (BGB).
The two-week period is a cut-off period (Ausschlussfrist). It runs from receipt of the notice, not from the moment the employee learns that she is pregnant. It is calculated under secs. 187 and 188 BGB, and if the period would end on a Saturday, Sunday or public holiday, sec. 193 BGB moves the end to the next working day.
What matters is that the notification reaches the employer, not that it is sent. No particular form is required and a third party may deliver it, but for evidentiary reasons we recommend written form with proof of receipt. The burden of pleading and proving the conditions of the special protection lies with the employee.
What must the notification to the employer actually say?
The notification must show that the pregnancy already existed when the notice of dismissal was received. A bare statement that “I am pregnant” does not always convey this — what counts is the objective meaning of the statement in the circumstances of the individual case. The Federal Labour Court speaks of a “dismissal-relevant pregnancy” (kündigungsrelevante Schwangerschaft), judgment of 3 April 2025 (2 AZR 156/24).
In 2 AZR 156/24 the employee took a home pregnancy test on 29 May 2022 with a positive result and emailed her employer the same day. The Federal Labour Court held that this was not an effective notification under sec. 17 (1) sentence 1 MuSchG, because the message did not show that the pregnancy already existed on 14 May 2022, when the notice was received. With roughly two weeks between the dismissal and the positive test, the timing alone does not carry that meaning.
The practical drafting rule is straightforward: state expressly in the letter to the employer that the pregnancy already existed on the day the notice was received, and give the expected date of delivery. There is no need to refer to the statutory prohibition of dismissal, nor to produce a medical certificate within the two-week period.
What if the two weeks have already expired?
Exceeding the period does no harm where two conditions under sec. 17 (1) sentence 2 MuSchG are met together: the delay is due to a reason for which the woman is not responsible, and the notification is made good without undue delay. The special protection then survives.
Responsibility is understood by the courts as fault against oneself (Verschulden gegen sich selbst) — a gross departure from what may be expected of a sensible person acting in her own interest. An employee is at fault where she knows she is pregnant and stays silent, or where compelling indications make a pregnancy practically undeniable and she does not react. Inaction based on a merely vague suspicion is generally not enough to establish fault (2 AZR 11/22).
“Without undue delay” means without culpable hesitation within the meaning of sec. 121 (1) sentence 1 BGB. There is no fixed minimum or maximum period, and the circumstances of the individual case decide. In 2 AZR 11/22 the Federal Labour Court regarded six days between learning of the pregnancy and contacting a lawyer as still being without undue delay.
Is the employee responsible for delays caused by her lawyer or messenger?
No. In the context of the pregnancy notification, third-party fault is not attributed to the employee — neither sec. 278 BGB nor sec. 85 (2) of the German Code of Civil Procedure (ZPO) applies. The Federal Labour Court confirmed this line in its judgment of 24 November 2022 (2 AZR 11/22).
The reasoning is constitutional. Art. 6 (4) of the Basic Law (Grundgesetz) contains a binding mandate to afford every mother protection and care. The Federal Constitutional Court derived from it that maternity-related protection against dismissal may not be lost where the notification was late through no fault of the woman and was made good without undue delay. Holding the employee liable for obstacles beyond her control would be incompatible with that mandate.
In practice the employee therefore does not bear the general risk that the notification arrives in time. If she instructs a lawyer in good time and the letter goes out late from the law firm, the protection remains. The limits are fault in selecting the intermediary (Auswahlverschulden) and her own hesitation — an employee who delays contacting her employer or lawyer after learning of the pregnancy acts at her own risk.
What if the three-week deadline for the claim has already passed?
The case is not lost. The labour court will admit the late claim on application where the woman learned of the pregnancy, through no fault of her own, only after the three-week period under sec. 4 sentence 1 of the Protection Against Dismissal Act (Kündigungsschutzgesetz, KSchG) had expired. The basis is sec. 5 (1) sentence 2 KSchG, confirmed by the Federal Labour Court in its judgment of 3 April 2025 (2 AZR 156/24).
One common misunderstanding needs clearing up first. Sec. 4 sentence 4 KSchG postpones the start of the period until the authority’s decision is communicated, where the dismissal requires official consent. In pregnancy cases that provision does not apply if the employer did not know, when giving notice, of the circumstances triggering the special protection — the Federal Labour Court applies a teleological reduction here. The three-week period therefore runs normally from receipt of the notice, even where the employee herself is still unaware of the pregnancy. This is the first operative holding in 2 AZR 156/24:
„§ 4 Satz 4 KSchG findet keine Anwendung, wenn der Arbeitgeber bei Zugang der Kündigung keine Kenntnis von den den Sonderkündigungsschutz gemäß § 17 Abs. 1 Satz 1 Nr. 1 MuSchG begründenden Umständen hat. Das gilt auch, wenn die Arbeitnehmerin zunächst selbst nicht um ihre Schwangerschaft weiß.“
“Sec. 4 sentence 4 KSchG does not apply where the employer, at the time the notice is received, has no knowledge of the circumstances giving rise to special protection against dismissal under sec. 17 (1) sentence 1 no. 1 MuSchG. This also applies where the employee herself initially does not know that she is pregnant.”
Federal Labour Court, judgment of 3 April 2025 — 2 AZR 156/24, operative holding 1 — our translation
If neither a claim nor an application for admission is filed, the dismissal is deemed valid from the outset (sec. 7 KSchG) — even where it breached sec. 17 MuSchG. The deadline must not be ignored in reliance on the substantive protection alone. How proceedings unfold is described in our article on the German labour court.
When does the two-week period for the application to admit a late claim begin?
The two-week period under sec. 5 (3) sentence 1 KSchG starts only once the employee knows that the pregnancy already existed at the time of the dismissal. Knowledge of the pregnancy “as such” is not enough. As a rule this point is reached only with the corresponding medical certificate, because only an examination can establish when the pregnancy began (2 AZR 156/24).
This late start is the answer to concerns raised by the Court of Justice of the European Union. In its judgment of 27 June 2024 (C-284/23, Haus Jacobus) the Court held that arts. 10 and 12 of Directive 92/85/EEC preclude national rules making a late claim conditional on an application filed within two weeks — but only in so far as the procedural rules governing that application fail to satisfy the principle of effectiveness because they make the enforcement of rights excessively difficult. The Court left the final assessment to the national courts. The requirement to file an application with a court as such was expressly not objected to, not even in combination with the duty to notify the employer.
The Court’s concerns were twofold: the two-week period is shorter than the ordinary three-week period, and its starting point appeared uncertain. The Federal Labour Court answered with its interpretation — the period starts only once the employee knows of a dismissal-relevant pregnancy, the application may be filed early, and the general ground under sec. 5 (1) sentence 1 KSchG remains available alongside. Read that way, the system satisfies EU law in the Court’s view, because the period for the application does not replace the period for the claim but is added to it and generally begins considerably later.
That assessment is contested. Part of the academic literature reads the Court of Justice judgment as establishing that the two-week period is incompatible with EU law, and the Mainz Labour Court — the court that made the reference — took a different line from the Federal Labour Court after the judgment (decision of 14 August 2024, 4 Ca 1424/22). For practice only one conclusion follows: do not rely on the interpretative dispute, and file the application in time.
There is nevertheless an absolute limit. Once six months have passed, counted from the end of the period that was missed, the application can no longer be made (sec. 5 (3) sentence 2 KSchG). No absence of fault can reopen that limit.
The application itself must satisfy sec. 5 (2) KSchG: it is combined with filing the claim or refers to a claim already filed, sets out the facts justifying admission, and names the means of substantiating them. The Federal Labour Court stressed that those means only have to be named at the time of the application and need not already be produced — substantiation may follow later, and undisputed facts require none at all.
Does a positive pregnancy test start the deadlines running?
A home test generally does not establish that the pregnancy already existed at the time of the dismissal, and therefore does not by itself start the period for the application. In 2 AZR 156/24 the Federal Labour Court held that after the test of 29 May 2022 the employee could not know whether she had been pregnant on 14 May 2022, when the notice was received. A medical examination was needed for that.
A positive test does, however, create a duty to act. The Court indicated that from that moment the employee may be required to seek a gynaecological appointment without culpable hesitation. In the case decided she did exactly that and was given the next free appointment only for 17 June 2022 — the practice’s waiting time was not held against her.
There is no need to wait for the examination before applying. The application to admit a late claim may be filed before the obstacle is removed and need not be repeated once the period starts. Sec. 5 (3) sentence 1 KSchG fixes the end of the application period, not its beginning.
Can the notification and the claim be combined in one document?
The notification to the employer may be made in a pleading filed in the unfair dismissal proceedings, provided the pleading reaches the employer. The Federal Labour Court expressly approved an arrangement in which one document reaches two addressees — the court, as a claim together with an application under sec. 5 KSchG, and the employer, as a notification under sec. 17 MuSchG (2 AZR 156/24).
This is helped by the fact that both periods generally start at the same moment, namely with the medical information. In 2 AZR 156/24 the statement of claim reached the employer on 17 June 2022, the very day the doctor confirmed the pregnancy — the notification was therefore made even earlier than required.
Professional caution nevertheless advises against relying on the pleading alone. Notifying through the court means losing control over when the document reaches the employer, and sec. 167 ZPO, which for claims backdates service to the day of filing, does not apply to the notification under sec. 17 MuSchG. A separate letter to the employer with proof of receipt, filed alongside the claim, is the safer route.
Dismissed in Germany while pregnant — or possibly pregnant
Record the exact date on which the notice was received, because every deadline runs from it. Seek a gynaecological appointment immediately and document when you called. Ask for a certificate stating the expected date of delivery, as the 280 days are counted back from it. Notify your employer in writing and with proof of receipt, stating expressly that the pregnancy already existed on the day the notice was received. Keep to the three-week period under sec. 4 sentence 1 KSchG, and if it has passed, file the claim together with an application for subsequent admission (sec. 5 KSchG) — the application may also be filed early. Do not exceed the six-month limit running from the end of the period you missed. Secure the documents: the notice with its envelope, correspondence, proof of appointment requests, the medical certificate and the Mutterpass.
Frequently asked questions
I received the dismissal and only afterwards learned that I was pregnant. Is the dismissal valid?
If the pregnancy already existed when the notice was received, the dismissal is void (sec. 17 (1) sentence 1 no. 1 MuSchG in conjunction with sec. 134 BGB). The condition is that the employer is notified within two weeks of receipt or — where the delay was not your fault — that the notification is made good without undue delay (sec. 17 (1) sentence 2 MuSchG).
I missed the three-week deadline because I did not know about the pregnancy. What now?
The labour court admits the claim on application where the woman learns of the pregnancy, through no fault of her own, only after the deadline has passed (sec. 5 (1) sentence 2 KSchG, confirmed by the Federal Labour Court in 2 AZR 156/24). The application must be filed within two weeks of the obstacle being removed and at the latest six months after the end of the period that was missed.
Is a positive home test enough to notify the employer?
Generally not. According to the Federal Labour Court (2 AZR 156/24), notifying a positive test roughly two weeks after the dismissal does not show that the pregnancy already existed when the notice was received — and that is precisely what the notification must convey. After a positive test you should arrange a medical appointment immediately.
From exactly which day does protection against dismissal apply?
From the 280th day before the expected date of delivery stated in the medical certificate, without counting the day of delivery (Federal Labour Court, 2 AZR 11/22). With a delivery date of 5 August, protection begins on 29 October of the previous year.
My lawyer sent the letter late. Do I lose the protection?
No. Third-party fault is not attributed in the context of the pregnancy notification, neither under sec. 278 BGB nor under sec. 85 (2) ZPO (Federal Labour Court, 2 AZR 11/22). A risk remains only in respect of fault in selecting the intermediary and your own hesitation.
Does the protection also apply during the probationary period?
The prohibition under sec. 17 MuSchG applies regardless of length of service and regardless of whether the six-month qualifying period under sec. 1 (1) KSchG has been completed. In 2 AZR 11/22 the employment relationship had lasted less than a month and the prohibition still applied. Only the competent authority may declare a dismissal exceptionally permissible (sec. 17 (2) MuSchG).
Sources: Federal Labour Court, judgment of 3 April 2025 — 2 AZR 156/24 (ECLI:DE:BAG:2025:030425.U.2AZR156.24.0), lower instances: Dresden Labour Court, 5 January 2023 — 6 Ca 1051/22, Saxony Regional Labour Court, 22 April 2024 — 2 Sa 88/23. Federal Labour Court, judgment of 24 November 2022 — 2 AZR 11/22 (ECLI:DE:BAG:2022:241122.U.2AZR11.22.0), lower instances: Heilbronn Labour Court, 15 April 2021 — 8 Ca 327/20, Baden-Württemberg Regional Labour Court, 1 December 2021 — 4 Sa 32/21. Court of Justice of the European Union, judgment of 27 June 2024 — C-284/23 (Haus Jacobus), on a reference from the Mainz Labour Court of 24 April 2023 — 4 Ca 1424/22, with a further decision of that court of 14 August 2024 in the same case. Court of Justice of the European Union, judgment of 29 October 2009 — C-63/08 (Pontin). Secs. 3, 17 MuSchG, secs. 4, 5, 7 KSchG, secs. 121, 134, 187, 188, 193, 278 BGB, sec. 85 ZPO, art. 6 (4) Basic Law. This article is general information and does not replace advice in an individual case.