The European Court of Justice (ECJ) has held in Porras Guisado v Bankia SA and others C-103/16 that pregnant workers can be dismissed in a collective redundancy situation and are not entitled to priority treatment, save to the extent that national law provides it.

The Pregnant Workers Directive (PWD) prohibits the dismissal of workers during the period from the beginning of their pregnancy to the end of their maternity leave, save in exceptional cases not connected with their condition that are permitted under national legislation or practice.

The Collective Redundancies Directive (CRD) defines collective redundancies as dismissals for one or more reasons not related to the individual workers concerned.

Bankia SA, a Spanish bank, dismissed Stephanie Porras Guisado as part of a collective redundancy exercise. The selection criteria to be applied in selecting which workers would be dismissed had been agreed between the bank and the employee representatives. Priority status was given to two categories of workers: married couples (or de facto married couples) and disabled employees whose disability was assessed as being at a particular level of severity.

Ms Porras Guisado did not fall into either of the protected categories, and was selected for redundancy on the basis of her low score against the agreed selection criteria. Ms Porras Guisado was pregnant at the time of her dismissal, although Bankia claimed not to be aware of this.

Ms Porras-Guisado challenged her dismissal in the Spanish Social Court but was unsuccessful. She then appealed to the High Court of Catalonia. The High Court referred a number of questions to the ECJ for a preliminary ruling on the interaction between the PWD and the CRD, including whether “exceptional cases” in the PWD was analogous to “one or more reasons not related to the individual concerned”, to what extent an employer must demonstrate that a pregnant woman who is selected for redundancy cannot be assigned to another position, and whether the PWD requires pregnant workers to be given priority for retention in cases of collective redundancy.

Bankia contended that the PWD did not apply, because they were unaware of her pregnancy at the time.

Advocate General’s opinion

In the Advocate General's opinion, while a collective redundancy situation may qualify as an “exceptional case”, collective redundancy is not in itself an “exceptional case” justifying the dismissal of a pregnant worker in all circumstances, and it will be for national courts to decide this in each case.

She stated that, in order for it to be lawful to dismiss a pregnant worker, there must be no plausible possibility of reassigning her to another suitable post.

The Advocate General also declared that the protection under the PWD should be engaged even before a worker has informed her employer of her pregnancy, however she acknowledged that this may lead to somewhat unfair or harsh results for employers.

European Court of Justice decision

The ECJ held that the PWD should not be interpreted so as to prohibit national legislation that allows an employer to dismiss a pregnant worker in the context of a collective redundancy exercise. It follows that reasons not related to the individuals concerned for making collective redundancies fall within the “exceptional cases” referred to in the PWD.

The ECJ further held that under the PWD, when a worker is dismissed during the period from the beginning of her pregnancy to the end of her maternity leave, the employer must give the reasons for her dismissal in writing and the objective criteria used to select workers for redundancy.

Finally, the ECJ ruled that the PWD does not require Member States to grant pregnant workers and workers who have recently given birth or are breastfeeding priority status for retention and redeployment. Nevertheless, Member States are free to provide higher protection for pregnant workers if they wish to do so.

The ECJ did not address the Advocate General's opinion that protection under the PWD should take effect from the beginning of pregnancy, even if the employer does not know that the employee is pregnant, finding that the question was not relevant on the facts of this case (it transpired that Ms Porras Guisado had given evidence that she had informed her employer of her pregnancy).

The ECJ also ruled that there is no requirement under EU law for pregnant workers, or those who have recently given birth or are breastfeeding, to be afforded special treatment in terms of retention or redeployment.

This decision is helpful since it confirms that national legislation that allows an employer to dismiss a pregnant worker in the ordinary course of a collective redundancy exercise, for reasons unconnected with her pregnancy, is permitted. There is no requirement to give special protection to pregnant workers or workers who have recently given birth in a collective redundancy exercise, save to the extent that national law provides it. It is important to note that under UK law, special protection is granted to women who are at risk of redundancy while on maternity leave, since they are entitled to be given first refusal of suitable alternative employment.

Employers should also note that, where a pregnant worker is made redundant as part of a collective redundancy exercise, she must be informed in writing of the reasons for the redundancy and the objective selection criteria. This is not currently set out in UK law, which only provides that pregnant workers are entitled to written reasons for dismissal.

This case previously attracted attention as a result of the Advocate General’s opinion that the PWD protects workers from the moment they become pregnant, even before they have notified their employer. The ECJ did not address this issue. This is helpful to UK employers as the current position therefore remains unchanged, and a pregnant worker will not benefit from statutory protection on account of pregnancy until her employer is made aware that she is pregnant.