German Federal Labor Court, Judgment of 26 March 2015 – 2 AZR 237/14

Under the German Maternity Protection Act, it is notpermissible to give notice of dismissal to a woman during pregnancy without the approval of the authorities if the employer was aware of the pregnancy at the time notice was given or if the employee notifies the employer of her pregnancy within two weeks after receiving the notice of dismissal. The Maternity Protection Act applies in cases of in vitro fertilization - but when (i.e. at which stage of the “procedure”) does in vitro fertilization result in pregnancy? The Federal Labor Court has now decided that the protection applies from the time the fertilized ovum is implanted (socalled embryo transfer), and not only when nidation is successful.

As to the case: On January 14 or 15, 2013, the plaintiff informed the defendant that she had been trying to become pregnant for several years and that another attempt to achieve in vitro fertilization was coming up. The embryo transfer took place on January 24. On January 31 the defendant gave her notice of dismissal – without the approval of the authorities. On February 7, it was confirmed that the plaintiff was pregnant. The plaintiff notified the defendant of this on February 13, 2013.

The Federal Labor Court found the dismissal to be invalid. At the time the plaintiff received notice of dismissal, she had special protection against dismissal under the Maternity Protection Act due to the embryo transfer that had taken place previously. Irrespective of the question whether or not nidation had taken place at this point of time.

According to the Court the dismissal also violates the prohibition of discrimination under the General Equal Treatment Act. In its decision of February 26, 2008 (C-506 / 06), the European Court of Justice ruled that direct discrimination on grounds of gender can exist if a notice of dismissal is issued essentially for the reason that the employee was undergoing in vitro fertilization treatment. In the dispute, the Regional Employment Court could legitimately assume, considering the circumstances of the case as a whole, that notice of dismissal was given because of the (intended) treatment and the associated possibility of a pregnancy.