To date, the BAG has determined protection against mass dismissal exclusively on the basis of the time of receipt of the termination declaration, also for persons on parental leave. This case law has now been deemed unconstitutional by the Federal Constitutional Court [Bundesverfassungsgericht, BVerfG] to the extent the consequence of waiting for the official declaration of permissibility is that the dismissal of an employee on parental leave can only be declared outside of the 30-day deadline relevant for a mass dismissal within the meaning of Sec. 17 Subsec. 1 sentence 1 German Act Against Unfair Dismissals [Kündigungsschutzgesetz, KSchG] and the said employee is consequently excluded from protection against mass dismissal. According to the BVerfG, this violates the general principle of equal treatment of Art. 3 Sec. 1 in conjunction with Art. 6 Sec. 1 German Constitution [Grundgesetz, GG] and leads to unjustified, indirect sex discrimination within the meaning of Art. 3 Sec. 3 GG.

In the case in dispute, the employer discontinued its business operations in Germany and declared the termination for operational reasons of all of its employees at the end of 2009. These terminations were invalid, as the consultation procedure with the general works council pursuant to Sec. 17 Subsec. 2 KSchG had not been conducted in a due and proper manner. The complainant, in contrast, was first given notice of dismissal in March 2010 and thus outside of the mass dismissal procedure, as she was on parental leave and the employer had initially awaited the official declaration of permissibility. Her termination therefore did not fall within the 30-day deadline of Sec. 17 Subsec. 1 KSchG and, in the opinion of the BAG and the prior instances, did not have to be notified. The complainant’s constitutional complaint against the judgement on the appeal on points of law filed was successful, however.

The BVerfG repealed the BAG’s judgement on grounds of an infringement of Art. 3 in conjunction with Art. 6 GG and referred the case back to the BAG for a new hearing. In the opinion of the BVerfG, the BAG’s case law - pursuant to which protection against mass dismissal also has to be determined exclusively on the basis of the time of receipt of the termination for persons on parental leave - leads to an unjustified disadvantage of the said group of persons. This disadvantage cannot also be justified by the fact that Sec. 18 German Federal Act on Parental Benefit and Parental Leave [Bundeselterngeld- und Elternzeitgesetz, BEEG] provides special protection against dismissal for employees on parental leave. Although waiting for the official administrative proceedings lifting the ban on the termination regularly leads to a later termination date, this does not compensate for the disadvantage suffered by the person concerned through the exclusion of protection against mass dismissal. Moreover, this constitutes indirect sex discrimination, as parental leave is taken by women to a considerably higher degree.

The decision is surprising. However, employers will have to adapt their practice to this change in the protection against mass dismissal. It remains to be seen how the BAG will concretely include employees enjoying special protection against dismissal into the protection against mass dismissal. Until then, however, all employees enjoying special protection against dismissal, whose terminations require a prior declaration of permissibility from the authority (such as, for example, pursuant to Sec. 18 Subsec. 1 sentence 4 BEEG, Sec. 9 Subsec. 3 German Maternity Protection Act [Mutterschutzgesetz, MuSchG], Sec. 85 German Social Code Book IX [Sozialgesetzbuch IX, SGB IX], etc.), will have to be included in both the notification of the mass dismissal and the notification of the works council (Secs. 17 Subsec. 1, 2 KSchG). This is because, in the opinion of the BVerfG, persons meriting special protection, for example, also fall within the scope of the 30-day period of Sec. 17 KSchG if the application is made to the competent authority within this period.