Special dismissal protection

What is special protection against dismissal?

Special protection against dismissal goes beyond the general protection against dismissal provided by the German Unfair Dismissal Protection Act (KSchG). It protects certain groups of employees who find themselves in particularly vulnerable life situations from ordinary dismissal or imposes particularly high requirements on the effectiveness of such dismissal.

The aim is to protect people in vulnerable situations, such as during pregnancy, in the case of severe disability, or in a works council function, from losing their jobs. In many cases, termination is only possible with prior official approval or exclusively for good cause.

Important: Special protection against dismissal does not mean that dismissal is ruled out in every case – but it does raise the hurdles considerably and makes invalid dismissal much more likely.

Overview of protected groups of people

Special protection against dismissal applies, among others, to:

• Pregnant women and mothers after childbirth (Section 17 MuSchG)
• Employees on parental leave (Section 18 BEEG)
• Severely disabled persons and persons of equal status (Section 168 SGB IX)
• Works council members and other employee representatives (Section 15 KSchG)
• Trainees after their probationary period (Section 22 BBiG)
• Data protection officers (Section 6 (4) BDSG, Section 38 (2) BDSG)
• Employees taking care leave and family care leave (Section 5 PflegeZG, Section 2 FPfZG)

The respective legal basis and scope of protection vary considerably depending on the group of persons. What they have in common is that the employer must meet significantly stricter requirements before they can terminate an employment relationship.

Pregnant women and mothers: Protection under the Maternity Protection Act

Pregnant employees and mothers up to four months after giving birth enjoy particularly extensive protection against dismissal under Section 17 MuSchG. Termination is generally not permitted during this period.

An exception is only possible if the competent supervisory authority expressly agrees. Without this official approval, the dismissal is invalid.

Retroactive protection: Special protection against dismissal also applies if the employer was not yet aware of the pregnancy at the time of dismissal. If it is communicated within two weeks of receipt of the notice of dismissal, the protection applies retroactively. This means that dismissals during pregnancy often have very good prospects of success.

Employees on parental leave: Protection under the BEEG

Employees on parental leave are specially protected under Section 18 BEEG. From the time of application – at the earliest eight weeks before the start of parental leave (or 14 weeks for parental leave from the age of three) – until its end, termination is generally not permitted.

Here, too, termination is only possible in rare exceptional cases and exclusively with official approval. Employers often underestimate the fact that protection against dismissal begins as soon as parental leave is duly registered.

If termination does occur, there is usually a good chance of having it declared invalid in an action for protection against dismissal . For more information, see Termination during parental leave .

Severely disabled persons: Protection under SGB IX

Severely disabled employees and those treated as such are subject to the special protection of § 168 SGB IX. Termination is only effective if the approval of the Integration Office has been obtained in advance.

Without this consent, the termination is invalid – regardless of whether there is an objective reason for termination. The Integration Office checks whether the termination is related to the disability and whether reasonable opportunities for continued employment exist.

Equivalent persons: Employees with a degree of disability of 30 or 40 can also be granted equivalent status upon application (Section 2 (3) SGB IX) and then enjoy the same protection against termination. The prerequisite is that they would not be able to obtain or retain a suitable job without equivalent status.

Works council members: Protection under the KSchG and BetrVG

Works council members enjoy particularly strong protection against dismissal under Section 15 KSchG. Ordinary dismissal is generally excluded during their term of office and for up to one year after its end.

This protection is intended to ensure that works council members can perform their duties freely and without fear of reprisals. It also applies to substitute members who have temporarily joined the works council, as well as to members of the youth and trainee representation.

Exception: Extraordinary (immediate) termination is possible in extreme cases – such as in the event of serious breaches of duty. However, this requires the consent of the works council itself (Section 103 BetrVG). If this is refused, the employer must apply to the labor court to have the consent replaced.

Other protected groups

In addition to the best-known cases, there are other groups of people with special protection against dismissal:

Data protection officers: Company data protection officers can only be dismissed without notice during their term of office and for up to one year after it ends (Section 6 (4) BDSG, Section 38 (2) BDSG). Ordinary dismissal on the grounds of their activity as data protection officers is not permitted.

Trainees after the probationary period: According to Section 22 BBiG, ordinary termination of the training relationship is no longer possible after the probationary period has expired. The only option is extraordinary termination for good cause.

Care leave and family care leave: Employees who take care leave in accordance with the Care Leave Act (PflegeZG) or family care leave in accordance with the Family Care Leave Act (FPfZG) are protected from ordinary termination from the time of notification until the end of the leave. Official approval as a key requirement

Official approval as a key requirement

For many protected groups of people, termination is only permissible with prior official approval. Depending on the protection regulation, a different authority is responsible:

• Pregnant women and mothers: approval of the competent supervisory authority (labor inspectorate or occupational safety and health authority)
• Severely disabled persons: Approval of the integration office
• Parental leave: Approval of the highest state authority responsible for occupational safety

The employer must submit the application for approval before giving notice of termination. If the employer terminates the employment relationship without approval or before the authority has made a decision, the termination is invalid.

The authority usually checks whether there are special exceptional circumstances that justify the dismissal despite the special protection against dismissal. Approval is only granted in rare cases.

Violation of special protection against dismissal: Legal consequences

A dismissal that is issued in violation of special protection against dismissal is generally invalid from the outset. The employment relationship continues as if the dismissal had never taken place.

But be careful: even if the termination is obviously invalid, those affected must file an action for protection against dismissal within the three-week period specified in § 4 KSchG. If you miss this deadline, the termination is considered valid – even if special protection against dismissal applies.

In addition, in certain circumstances, those affected can assert claims for wages for default of acceptance , i.e., remuneration for the period during which the employer wrongfully did not employ them.

Practical tips in the event of dismissal despite special protection against dismissal

If you receive a termination despite special protection against dismissal, you should take the following steps:

• Act immediately: Have the termination reviewed by a lawyer immediately. The three-week period for filing an action for unfair dismissal begins upon receipt of the termination notice, regardless of special protection against dismissal.
• Secure evidence: Collect all relevant documents. Maternity log, severely disabled person's pass, equality notice, parental leave registration, or works council election minutes.
• Notify your employer of your pregnancy: If you have been dismissed and are pregnant, notify your employer immediately, at the latest within two weeks of receiving the notice of dismissal.
• Check official approval: Clarify whether the employer obtained the necessary approval before giving notice of termination. If this is missing, the termination is generally invalid.
• Do not sign prematurely: Do not allow yourself to be pressured into signing a termination agreement . This could undermine your special protection against dismissal.