Pregnant workers may be protected against dismissal before they notify their employer of their pregnancy, according to the Advocate General to the European Court of Justice.
Speedread
The Advocate General has given a non-binding opinion that workers are protected against dismissal under the Pregnant Workers Directive from the beginning of their pregnancy, regardless of whether they have informed their employer of their pregnancy. She also considered that the dismissal of a pregnant worker in a collective redundancy situation will only be justified if there is no plausible possibility of reassigning her to another suitable post, suggesting that pregnant workers should be given priority when it comes to being offered alternative vacancies. Employers should also give a pregnant worker detailed reasons explaining why her dismissal is justified as an exception to the rule that the dismissal of a pregnant worker is prohibited.
Facts
In Porras Guisado v Bankia, Ms Porras Guisado was dismissed as part of a collective redundancy exercise as she achieved a low score in the selection process agreed with the employee representatives. She was pregnant when her employer dismissed her but it claimed it was unaware of this. Ms Porras Guisado challenged her dismissal in the Spanish Courts which referred a number of questions to the European Court of Justice.
Advocate General Opinion
Under the Pregnant Workers Directive, pregnant workers can only be dismissed in exceptional cases unconnected with their pregnancy. The Advocate General considered that workers are protected against dismissal from the beginning of their pregnancy, regardless of whether they have informed their employer of their pregnancy. She acknowledged that this means that an employer may unwittingly dismiss a pregnant worker whom they ought not to have dismissed. However, once they knew of the pregnancy they would have the opportunity to rectify the damage (either by reinstating the employee or by reopening the dismissal procedure and following the steps they should have taken previously). In fairness to the employer, the dismissed employee would have to notify the employer of her pregnancy without unreasonable delay.
The Advocate General went on to say that dismissal of a pregnant worker in a collective redundancy situation will only be justified if there is no plausible possibility of reassigning her to another suitable post (be that a vacant post or a vacancy created by transferring another worker to another post). However, there is no obligation to retain a pregnant worker in the organisation (suggesting that there is no need to afford them priority in the selection process).
Finally the Advocate General considered that when dismissing a pregnant worker, an employer must set out in writing the exceptional circumstances unconnected with pregnancy that permit the dismissal. This means that it is not enough to provide general reasons for the redundancies and the selection criteria used. Instead, the employer must also explain why this is an exceptional case in which the dismissal of a pregnant worker is permitted.
Implications
Under UK law, pregnant employees are only protected against discrimination and dismissal where their employer knows of their pregnancy and acts unlawfully as a result. It remains to be seen whether the European Court of Justice (ECJ) will agree with the Advocate-General when it gives its ruling, but if it does this could result in liability for employers in cases where they are unaware that an employee is pregnant. UK law also gives women whose role becomes redundant when they are on maternity leave the right to be offered any suitable available vacancy. The Advocate General’s opinion suggests that women should be given the same priority treatment if their role becomes redundant at any time when they are pregnant or on statutory maternity leave.
Finally, whilst UK law requires employers to provide a written statement of reasons for dismissal when dismissing a pregnant employee, employers may need to provide more detail explaining why the dismissal is justified as an exception to the rule that the dismissal of a pregnant worker is prohibited.
The Advocate General’s opinion is not binding but is issued as an aide to help the ECJ decide the case. The ECJ is unlikely to give its judgment before next year.
Written by Louise Donaldson
of Doyle Clayton
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