Retroactive Admission of Action For Protection Against Dismissal Upon Late Knowledge of Pregnancy

To ensure that women who are not yet aware of their pregnancy within this three-week period may benefit from this special protection as well, Sec. 5(1) sent. 2 of the Protection Against Unfair Dismissal Act provides an exception to the very short filing deadline: If the expectant mother only gained knowledge of her pregnancy for reasons beyond her control only after the three-week period has expired, the labor court must retroactively admit her wrongful termination action upon application.

In a ruling dated April 3, 2025 (Case No. 2 AZR 156/24), the Federal Labor Court (BAG) clarified that a positive pregnancy test alone does not yet constitute knowledge of pregnancy for the pregnant employee.

Facts of the Case

The plaintiff was an employee of the defendant. The defendant terminated the employment relationship with the plaintiff with ordinary notice of termination delivered on May 14, 2022. A little over two weeks later, on May 29, 2022, the terminated employee took a pregnancy test, which was positive. She immediately sought an appointment with a gynecologist but was only able to secure one for June 17, 2022. On June 13, 2022, approximately four weeks after receiving the termination notice, the plaintiff filed an action for protection against dismissal and requested its retroactive admission under Sec. 5(1) sent. 2 of the Protection Against Unfair Dismissal Act. She submitted a medical certificate dated June 17, 2022, which stated that the pregnancy began on April 28, 2022, a date prior to the termination.

The defendant employer argued in the proceedings that the plaintiff had already gained knowledge of her pregnancy due to the positive pregnancy test, which occurred before the expiry of the three-week period pursuant to Sec. 4(1) of the Protection Against Unfair Dismissal Act. Therefore, a retroactive admission of the action in accordance with Sec. 5(1) sent. 2 of the Protection Against Unfair Dismissal Act was not possible, and the wrongful termination claim was thus time-barred.

Decision

The employer’s argument was unsuccessful in all three court instances. The Federal Labor Court also ruled that the termination was invalid due to a violation of Sec. 17(1) sent. 1 no. 1 of the Maternity Protection Act. The legal validity of the termination was not deemed to have been established pursuant to Sec. 7(1) of the Protection Against Unfair Dismissal Act due to the expiry of the three-week period for filing an action. Instead, the action was to be retroactively admitted under Sec. 5(1) sent. 2 of the Protection Against Unfair Dismissal Act. The court held that the plaintiff did not have “knowledge” of her pregnancy with the positive pregnancy test alone but only upon the medical confirmation of the pregnancy. The fact that the earliest possible gynecologist appointment for her was after the filing deadline on June 17, 2022, was beyond her control.

Conclusion

The Federal Labor Court’s ruling strengthens the special protection against dismissal for pregnant women. It provides legal clarity that women do not have definitive knowledge of their pregnancy within the meaning of Sec. 5(1) sent. 2 of the Protection Against Unfair Dismissal Act on the basis of a positive self-test alone, but only after a doctor has confirmed the pregnancy. However, for the retroactive admission of an action for protection against dismissal, the pregnant woman will then still be required to seek a gynecologist appointment as soon as possible after the pregnancy test.

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