Background

The Constitutional Court has increased pregnant workers’ protection. This judgment stated that by virtue of the scope and guarantees provided by the Statute of Workers (regarding gender equality, specifically in pregnancy situations), the employer is not required to be aware of a worker’s pregnancy in order for a determination of a null and void wrongful dismissal.

In light of the above, unless an employer can prove the fairness of the termination, the simple confirmation of pregnancy and the fact that the dismissal was not declared fair are enough reason for it to be declared automatically null and void.

Facts

The controversy arises because at the moment of the dismissal the employer was unaware of the employee’s pregnancy. The employee defended; (a) her right to hide her state on the grounds of privacy; and (b) that [statute] [the relevant regulation] does not oblige the employee to disclose it.

Effect on employers

Employers must be extremely careful when carrying out dismissal procedures in which there is a possibility that an affected employee is pregnant. Furthermore, companies must be very careful if they request information from an employee, for example, whether they are pregnant, as it could breach the employee’s right to privacy.

Judgment of the Constitutional Court of 21 July 2008