Pregnancy discovered after dismissal: has the deadline to challenge it been missed?

First, address employer notification and the court deadline separately

Our practical recommendation: promptly have the date you received notice, what you knew and the necessary steps before the labour court assessed. Give the employer a clear notification of the pregnancy and, once established, that it already existed when you received notice. Keep proof of that notification. A message to the employer does not replace a court claim; contacting a law firm does not preserve a deadline.

The BAG case: proceedings started before the medical appointment

The employee received notice on 14 May 2022. A home pregnancy test was positive on 29 May. She wrote to the employer and immediately tried to arrange an appointment with her gynaecologist. The first available appointment was 17 June. The ordinary court deadline had expired on 7 June. Nevertheless, she filed her claim and an application for admission out of time on 13 June, before the medical examination (paragraphs 2 to 5 and 13).

The examination confirmed that the pregnancy had already existed when notice was received. The BAG confirmed the admission of the late claim and that the dismissal had not ended the employment relationship. The employer’s appeal on points of law was dismissed at its expense. The case was not remitted for further fact-finding (operative part; paragraphs 10, 35 to 46 and 47 to 52).

Why the three-week deadline still runs

Under section 4, sentence 1 of the German Protection Against Dismissal Act (KSchG), a written notice of dismissal must generally be challenged in court within three weeks of receipt. The BAG held that this also applies where neither side initially knows of the pregnancy. The special rule concerning administrative approval in section 4, sentence 4 does not defer the start of the deadline in this situation. Failure to challenge the dismissal in time risks it being treated as effective under section 7 KSchG (paragraphs 11 to 15).

Section 17 of the German Maternity Protection Act (MuSchG) applies separately: the employer must know of the pregnancy at dismissal or generally be informed within two weeks of receipt of notice. A delay for which the woman is not responsible does not defeat protection if notification is made without undue delay. Protection is not absolute: in exceptional cases unrelated to the pregnancy, the competent authority may authorise dismissal (section 17(1) and (2) MuSchG).

When the deadline for admission out of time begins

What matters is knowledge that the pregnancy already existed when notice was received. This will generally follow from an appropriate medical examination. In the BAG case, a positive test two weeks after dismissal did not establish that the employee had already been pregnant when notice was received. This does not mean that a test can never suffice or that every deadline starts only with a medical certificate (paragraphs 25 to 29 and 37).

Under section 5(3) KSchG, the application must be made within two weeks after the obstacle is removed. According to the BAG, this period starts upon knowledge of the pregnancy relevant to dismissal, or when the lack of knowledge is attributable to the employee’s own fault. The statute also sets an outer limit of six months from the end of the missed court deadline. That limit is not an additional period in which to wait. There is no automatic three-weeks-plus-two-weeks rule (paragraphs 27 and 29).

Do not wait for a certificate or merely report a test

The BAG left open whether a positive home test always creates an obligation to seek a medical examination without undue delay. The claimant had done so immediately. In practice, we recommend arranging an appointment promptly and documenting delays. A precautionary claim with an application for admission out of time may already be permissible before the medical findings are available (paragraphs 26, 29, 38 and 41).

The application must accompany the claim or refer to a claim already filed. It must identify the supporting facts and the means of substantiating them. Not all supporting documents must already be available; submitting them later may be possible (section 5(2) KSchG; BAG, paragraphs 29 and 42 to 46).

The email about the positive test was insufficient in this particular case: it did not notify the employer of a pregnancy already existing when notice was received. That notification was made in time through the statement of claim served on the employer on 17 June. The content and receipt of employer notification should therefore be assessed separately. Do not assert a date without a substantiated basis (paragraphs 50 and 51).

Documents that can help now

Our own example: you learn of a possible pregnancy only four weeks after dismissal, and no medical appointment is available until later. That can justify an immediate assessment of admission of a late claim. The start of pregnancy, your previous knowledge, reasons for the delay and timely action towards the court and employer remain decisive. A later medical appointment alone does not guarantee admission.

• Keep the dismissal letter, its envelope and evidence of the actual date of receipt.
• Record the test date, initial indications and what you knew accurately.
• Document attempts to arrange an appointment, available examination dates and medical findings on the start of pregnancy.
• Have notifications to the employer and proof of their receipt available.
• Provide any claims, applications and court correspondence already filed or received for assessment of the deadlines.