The EU Maternity Directive is concerned with the protection of the health and safety of pregnant workers and those on maternity leave. It includes a requirement on Member States to ensure that they prohibit the dismissal of a worker during the period from the beginning of the pregnancy to the end of the maternity leave, save in exceptional circumstances. Member States can determine the exceptional circumstances in which a pregnant worker can be dismissed, provided the dismissal is not pregnancy related.

The EU Collective Redundancies Directive regulates collective redundancy dismissals, which are defined as "dismissals effected by an employer for one or more reasons not related to the individual workers concerned".

In the Spanish case of Jessica Porras Guisado v Bankia SA, Fondo Garantia Salarial and others (C-103/16) the Advocate General (AG) of the European Court of Justice (ECJ) has published an opinion on the relationship between these two Directives in advance of the Court giving its decision.

Facts

Ms Porras Guisado worked for the Spanish company Bankia SA. She was selected for redundancy in accordance with a collective redundancy agreement, having achieved a score that placed her among the lowest scores in the province in which the collective redundancy situation had arisen. As part of the legal challenge Ms Guisado raised, the ECJ was asked to interpret the prohibition on the dismissal of pregnant workers in the event of a collective redundancy situation.

The Advocate General's opinion

  • The employer does not need to know about the worker's pregnancy for the protection to apply.
  • Not every collective redundancy is an ‘exceptional case’. It is for the national court to verify whether in each case the collective redundancy qualifies as an 'exceptional case'.
  • There must be no plausible possibility of assigning the pregnant worker to another suitable post for the dismissal to be exceptional.
  • Member States are free to provide additional protection for pregnant workers by giving them priority when deciding who to retain in a collective redundancy situation, but are not obliged to do so.
  • Member States must provide pregnant workers with protection against dismissal and also protection against the consequences of dismissal. The Spanish legislation provides that an unlawful dismissal is void and fails to provide protection against dismissal in the first place.
  • Any permissible dismissal must be in writing and explain how the pregnant worker falls within the exceptional cases that permit the dismissal of someone in her position, in addition to addressing her selection for redundancy.

Comment

The AG's approach will not surprise UK employment lawyers, who are well used to the protection afforded to pregnant workers under UK law. The Equality Act 2010 expressly prohibits pregnancy and maternity related discrimination from the beginning of the pregnancy until the end of the maternity leave period. It is also automatically unfair to dismiss a woman or select her for redundancy for a reason connected to the pregnancy or statutory maternity leave.

It is, however, surprising that the protection of a pregnant worker is noted by the AG to be engaged before the employer has been informed of the pregnancy, when Article 2 of the Maternity Directive defines a pregnant worker as someone who informs her employer of her condition. The suggestion that it should be possible to unravel the redundancy of an employee who is subsequently discovered to be pregnant is naïve and fails to recognise the practical implications for all concerned, including the employer's other employees. It is hoped that the ECJ will take a pragmatic approach when it considers this aspect of the AG's opinion in due course.

The AG's confirmation that pregnant women are not entitled to be prioritised for suitable alternative vacancies in a redundancy situation unless Member States provide such protection is welcome. The current position in the UK - in which women on maternity leave are entitled to preferential treatment under Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 - is something that employers often find difficult to reconcile with equal treatment principles. It is good news that such protection will not be extended to women who are pregnant, regardless of whether the employer knows that they are pregnant. That is unless the ECJ decides otherwise…