Special Dismissal Protection in Germany

Special dismissal protection in Germany: an overview

Special dismissal protection (Sonderkündigungsschutz) is a layer of protection that applies to certain groups of employees in addition to, and largely independently of, the general Protection Against Dismissal Act (KSchG). It covers in particular pregnant employees and new mothers, employees on parental or family care leave, severely disabled employees, members of works councils and other employee representative bodies, candidates and organisers of works council elections, and mandatory data protection officers.

Most of these rules apply regardless of the size of the business and, in many cases, from the first day of employment. Their common feature is that the employer either may not dismiss at all, may dismiss only for cause, or needs the prior approval of a public authority or the works council.

A dismissal that ignores special dismissal protection is void. Because the approval requirements involve separate procedures with their own deadlines, the timing of a dismissal must be planned carefully, especially in restructurings and in cases of misconduct where the two-week deadline for termination for cause under § 626(2) BGB is running.

Pregnancy and maternity

Under § 17(1) of the Maternity Protection Act (Mutterschutzgesetz, MuSchG), a dismissal is prohibited during pregnancy, until four months after a miscarriage after the twelfth week of pregnancy, and until the end of the protection period after childbirth, but at least until four months after the birth. The prohibition applies if the employer knew of the pregnancy, miscarriage or birth when it gave notice, or if the employee informs the employer within two weeks after receiving the notice. Exceeding the two-week period is harmless if the employee was not responsible for the delay and catches up immediately. The prohibition also covers preparatory measures taken with a view to a dismissal, such as advertising the position to replace the employee.

In special cases unrelated to the pregnancy, the state authority responsible for occupational safety can declare a dismissal admissible (§ 17(2) MuSchG). Typical cases are the closure of the entire business or serious misconduct. The authority's declaration must be obtained before the notice is given. The protection applies from the first day of employment and in businesses of every size. It does not, however, prevent a valid fixed-term contract from expiring.

Parental leave and family care leave

Employees who request parental leave are protected under § 18 of the Federal Parental Allowance and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz, BEEG) from the moment of the request, but at the earliest eight weeks before the start of leave taken before the child's third birthday and fourteen weeks before leave taken between the third and eighth birthdays. The protection continues throughout the leave. It also applies to employees who work part-time for the same employer during parental leave. As with maternity protection, the state authority may exceptionally declare a dismissal admissible.

The Caregiver Leave Act (Pflegezeitgesetz, PflegeZG) contains a parallel rule: from the announcement, at most twelve weeks before the announced start, until the end of short-term absence or care leave, the employer may not dismiss (§ 5(1) PflegeZG). Employers should keep track of announcements of leave in HR systems so that any planned dismissal is checked against these windows.

Severely disabled employees

Under § 168 of Book IX of the Social Code (SGB IX), the dismissal of a severely disabled employee, or of an employee with equal status, requires the prior consent of the Integration Office (Integrationsamt). The protection begins once the employment has lasted more than six months without interruption (§ 173(1) no. 1 SGB IX). The minimum notice period is four weeks (§ 169 SGB IX).

The procedure has its own deadlines. For an ordinary dismissal, the Integration Office should decide within one month, and once consent is given the employer must declare the dismissal within one month of service of the decision (§ 171 SGB IX). For a dismissal for cause, the application must be filed within two weeks of the employer becoming aware of the relevant facts, the office decides within two weeks and consent is deemed granted if it does not, and the employer must then declare the dismissal without delay (§ 174 SGB IX). An objection by the employee against the consent does not have suspensive effect.

In addition, the representative body for severely disabled employees (Schwerbehindertenvertretung) must be informed and heard before any dismissal of a severely disabled employee; a dismissal declared without this involvement is invalid (§ 178(2) SGB IX). Where the employer does not know of the disability, case law requires the employee to inform the employer within a reasonable period, generally three weeks after receiving the notice, to preserve the protection.

Works council members and election participants

Members of the works council and similar bodies can be dismissed only for cause, and only with the prior consent of the works council under § 103 of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) or a labour court decision replacing that consent (§ 15(1) KSchG). Ordinary dismissal is excluded. After the end of the term of office, ordinary dismissal remains excluded for one year. Representatives of severely disabled employees enjoy the same protection (§ 179(3) SGB IX).

Protection extends to the election process. Members of the election board from their appointment and candidates from the drawing up of the list of nominees are protected until the announcement of the result, and against ordinary dismissal for six months afterwards (§ 15(3) KSchG). Employees who invite to an election meeting or apply for the appointment of an election board are protected under § 15(3a) KSchG. With regular works council elections held every four years between 1 March and 31 May, and 2026 being an election year, these rules are currently of particular practical relevance; see our page on works councils.

Where a business or a department is closed, § 15(4) and (5) KSchG allow ordinary dismissal of protected members at the time of closure, or require their transfer to another department if possible.

The procedure under § 103 BetrVG

In practice, a dismissal for cause of a works council member involves two steps that must fit within tight deadlines. The employer applies to the works council for consent, setting out the facts in detail; the member concerned may not take part in the decision. If the works council refuses or does not respond within three days, the employer must apply to the labour court to replace the consent within the two-week period of § 626(2) BGB, which runs from knowledge of the relevant facts. The dismissal can be declared only once the court decision has become final, and it must then be declared without delay. Proceedings can take months, during which the member usually continues in office.

Data protection officers and other protected roles

A data protection officer whose appointment is mandatory, for example because at least 20 persons are constantly engaged in automated processing, can be dismissed only for cause, during office and for one year afterwards (§ 38(2) in conjunction with § 6(4) of the Federal Data Protection Act). Removal from the office itself requires a good reason in analogous application of § 626 BGB. Where the appointment is voluntary, this special protection does not apply.

Other statutes protect further roles, including occupational safety specialists and company doctors against discrimination, immission control and waste officers, and employees performing military service. Whistleblowers are not given special dismissal protection as such, but the Whistleblower Protection Act prohibits retaliation and reverses the burden of proof; see our article on whistleblower retaliation.

Special dismissal protection in restructurings

In restructurings, special dismissal protection affects both timing and selection. Employees with special protection are not excluded from social selection, but the authority approvals take time, and the employer must decide whether to wait for approvals before dismissing other employees or to dismiss in waves. In a collective redundancy, the notification to the employment agency under § 17 KSchG must also cover protected employees, and the sequence of approvals and notices should be mapped in a single timetable.

Illustration: a manufacturer closes a production line and plans to dismiss 25 employees. Among them are a severely disabled machine operator, an employee on parental leave and a member of the election board for the upcoming works council election. The employer must apply to the Integration Office and to the state occupational safety authority, involve the representative body for severely disabled employees, and check whether the election board member can be transferred to another department. Planning these steps together with the consultation of the works council and the collective redundancy notification avoids invalid dismissals and repeated rounds of notices.

Settlement agreements are often the most practical solution. A mutual termination agreement is not a dismissal and therefore does not require authority consent, but it must be in writing (§ 623 BGB) and must be genuinely voluntary. Pregnant employees in particular should be given time to consider an offer. Our page on dismissals and restructuring covers the overall process.

How TRW & Co helps

We advise employers on all aspects of special dismissal protection: checking protected status before a dismissal, preparing applications to the Integration Office and the state occupational safety authorities, and conducting proceedings under § 103 BetrVG for the replacement of works council consent. We coordinate deadlines in cases of termination for cause, structure restructurings with protected employees and negotiate termination agreements. In the labour and administrative courts, we represent employers in disputes over authority approvals and dismissals. To discuss a specific case, contact us. This article is general information, not legal advice.