Under the Pregnant Workers Directive, governments are required to take steps to prevent pregnant workers and those on maternity leave from being dismissed "save in exceptional cases not connected with their condition". In Porras Guisado v Bankia SA, Advocate General Sharpston considers whether a collective redundancy situation is an "exceptional case". Her answer to that question is "not necessarily". If her opinion is followed by the CJEU, pregnant workers and those on maternity leave are likely to have more protection against dismissal in a redundancy situation.
A collective redundancy situation arose at Ms Porras Guisado's workplace. She was selected for redundancy and dismissed while she was pregnant. She disputed her dismissal and her employer claimed that it had not known that she was pregnant. In any event, it argued that the redundancy situation was an "exceptional case", meaning that it was entitled to dismiss her despite her pregnancy. The case was referred to the CJEU. The Advocate General has now given her opinion. In her view:
- Protection against dismissal applies from the beginning of pregnancy to the end of maternity leave, regardless of whether the employer knows that the worker is pregnant.
- What amounts to an "exceptional case" has to be construed narrowly. A collective redundancy situation will not necessarily be "exceptional".
- An employer cannot dismiss a pregnant worker/ worker on maternity leave if she can "plausibly be reassigned" to another suitable work post.
- An employer must give a dismissed worker an explanation of why the collective redundancy in question is an "exceptional case" if she is pregnant or on maternity leave at the time of the dismissal.
At the moment, under the Employment Rights Act and Maternity and Parental Leave Regulations it is permissible to select a pregnant employee or a woman on maternity leave for redundancy provided that the selection is non-discriminatory. Employees selected for redundancy while on maternity leave (but not while pregnant) have a priority right to redeployment. If the CJEU follows the AG's opinion, that position may have to be revisited.