In Porras Guisado v Bankia SA and others, Advocate General Sharpston has given her opinion on the interaction between the European Collective Redundancies Directive and the Pregnant Workers Directive.

Ms Porras Guisado was dismissed by her employer, a Spanish bank, as part of a collective redundancy exercise. After being scored under agreed selection criteria, she was selected for redundancy. The claimant was pregnant at the time of the dismissal but the bank stated that it was unaware of this at that time. The claimant challenged her dismissal in the Social Court but was unsuccessful.

She appealed to the High Court of Catalonia which referred questions to the European Court. One of these questions was to clarify whether a collective redundancy exercise could be an “exceptional circumstance” under the PWD, allowing an employer to dismiss a pregnant worker. The Advocate General has expressed her opinion that a collective redundancy exercise will not always be exceptional, as such an exercise is a fairly regular event. There would need to be other exceptional circumstances for the exemption under the PWD to apply.

The opinion confirms standard practice under UK law that a pregnant worker cannot be dismissed simply because she is part of a collective redundancy exercise. Such a dismissal would only be lawful where there is no plausible possibility of reassigning the pregnant worker to a suitable position.

The Advocate General also expressed her opinion that there is a contradiction in the PWD as the protected period extends from the beginning of pregnancy to the end of additional maternity leave, or earlier if the woman returns to work before that. However the definition of a “pregnant worker” in the PWD is a pregnant worker who has notified her employer of the pregnancy. She acknowledged the lack of clarity in the PWD and urged the Court to address this issue in its judgment. She commented that an employer who does not know about the pregnancy cannot comply with the PWD. However, she stated that, once notified, an employer could remedy the situation by reinstating a pregnant worker or deselecting her for redundancy. It will be interesting to note that the Court’s final decision on this.

Under UK law, employers cannot discriminate against an employee on the grounds of pregnancy or maternity (from the beginning of the pregnancy to the end of maternity leave). Where a redundancy situation arises during maternity leave, and the woman would otherwise be made redundant, she must be offered a suitable alternative vacancy where one is available. This protection does not begin until maternity leave is under way. It is, however, automatically unfair to dismiss a woman at any time or to select her for redundancy when the reason for the dismissal or selection for redundancy is connected to her pregnancy or statutory maternity leave.