Maternity protection pay: no disadvantage with seasonally fluctuating income

When it comes to maternity protection pay and the amount of maternity protection pay under the Maternity Protection Act (MuSchG), the last three months before the start of a pregnancy are relevant for the calculation. This is not a problem for women with a fixed monthly income or a low proportion of variable remuneration. The situation is different if the variable portion of the remuneration is high and also fluctuates (strongly) depending on the season.

Current ruling on maternity protection pay

A ruling by the Federal Labor Court (BAG) on this topic seems long overdue. The ruling has now made it clear: seasonal fluctuations in wages over the course of a calendar year may not lead to discrimination against individual female employees (BAG, ruling of 08.04.22, Ref.: 5 AZR 305/22).

What is maternity pay?

Maternity protection pay is paid to pregnant employees who are subject to an employment ban due to an increased risk to life and health. A distinction must be made between a company ban and a medical ban on employment. A prerequisite for entitlement to maternity protection pay due to a medical ban on employment is a medical certificate confirming the ban on employment, which should include the following in particular:

• the period of the employment ban,
• the scope of the employment ban and

Information on which activities are still possible or which specific activities of the woman could lead to a risk, which activities the employee may no longer carry out and whether lighter work or reduced working hours may be permitted. On the basis of the certificate, a decision is made as to whether the pregnant woman is then subject to a complete ban on employment or whether she is only unable to carry out certain tasks – i.e. whether she must be released from work completely or whether she can take on other tasks. 

If a pregnant woman is unable to work as a result of her pregnancy, she receives maternity pay from her employer until the start of maternity leave. When the statutory maternity protection period begins, the woman then receives maternity benefit from the health insurance fund.

How high is the maternity pay?

The maternity protection wage corresponds to the woman’s average gross wage before the start of the pregnancy. If the salary is paid monthly, the average of the three months before the start of the pregnancy is relevant, § 18 MuSchG.

More precise specifications for determining the average pay can also be found in Section 21 MuSchG. This stipulates, among other things, that

• e.g. zone-off payments (e.g. bonuses) are not included in the calculation and
• that, for example, reductions in pay due to short-time working are not taken into account.

However, there is no explicit regulation on how to deal with income that fluctuates significantly throughout the year when calculating maternity protection pay. In this respect, it is not surprising that a legal dispute about a case in which the pregnant woman’s income fluctuated greatly depending on the season “went through the courts”. This is because there was simply no regulation for this situation until then.

Legal dispute due to seasonally fluctuating income before the BAG

A flight attendant argued with her employer in court about the amount of her maternity pay. The woman received a fixed basic salary from her employer, plus remuneration for additional flying hours and commission for in-flight sales.

However, this variable income fluctuated greatly: between May and December 2018, the additional income amounted to between just under 400 and up to 900 euros per month.The situation was different between January and April 2019, when the maximum on-board sales commission amounted to just over 50 euros per month. However, the woman had become pregnant in May 2019 and was banned from working during her pregnancy to protect the child and the expectant mother.

The employer paid maternity leave pay and based the calculation on the three months before the start of the pregnancy – i.e. three of the very low-turnover months in 2019. The woman did not agree with this. She felt that the coincidental timing of her pregnancy put her at a disadvantage compared to others.She therefore sued for higher maternity pay and a higher maternity allowance. With such strong fluctuations in pay, a longer period than three months had to be taken into account.

BAG ruling: period of twelve months relevant in the event of strong fluctuations

And she was proved right. The court said: If the three-month reference period does not accurately reflect income in cases of “exceptionally fluctuating earnings”, the relevant period for calculating maternity pay should exceptionally be adjusted to a twelve-month reference period. This principle also applies to the employer’s contribution to maternity pay.

The effects of the ruling

The Federal Labor Court has issued a landmark ruling here that employers and HR departments should definitely keep in mind. When calculating maternity protection pay, employers should always check how much income has fluctuated seasonally in the last twelve months before the start of the pregnancy. If income fluctuates significantly due to seasonal differences in variable salary components, the maternity protection pay should be calculated directly on the basis of the average of twelve months in order to avoid unnecessary legal disputes.