According to an Advocate General, pregnant workers are protected from the beginning of their pregnancy, even before the employer is aware of the pregnancy. Unless and until the European Court of Justice agrees, employers do not need to make any changes.

The facts

Ms Porras Guisado was dismissed by her employer, a Spanish bank, as part of a collective redundancy exercise. She was pregnant when she was dismissed, though her employer claimed to be unaware of this.

Ms Porras Guisado challenged her dismissal in her local Spanish court, which found in favour of her employer. She then appealed to the High Court of Justice in Catalonia, which decided to refer various questions to the European Court of Justice for a preliminary ruling.

Of most interest to UK employers are the following points from the Advocate General's Opinions on the questions raised.

  • Article 10 of the Pregnant Workers' Directive prohibits the dismissal of pregnant workers except in "exceptional cases";

  • The Pregnant Workers Directive requires a broad prohibition on dismissal of pregnant workers;

  • Pregnant workers are protected from the beginning of their pregnancy even if they have not yet informed their employer that they are pregnant;

  • For the dismissal of a pregnant worker to be lawful, there must be no plausible possibility of reassigning her to a suitable post;

  • Pregnant workers do not have to be given priority for retention in a collective redundancy situation, though national law may choose to give them priority;

  • A notice of dismissal of a pregnant worker must be in writing and state "duly substantiated" grounds regarding the "exceptional case" that permits the dismissal.

The Opinion also gives guidance about what employers should do if they become aware that a worker is pregnant after the employer has notified her that she is to be dismissed.

If the European Court of Justice follows this Opinion, there may be arguments that the UK has not properly implemented EU law because:

  • there is no "broad prohibition" on dismissing pregnant workers;

  • lawful dismissals are not limited to "exceptional" cases;

  • UK legislation requiring written reasons for dismissal does not extend to workers, nor does it require the reasons to justify dismissal as "exceptional".

If the Opinion is followed, employees who have been notified that they are to be dismissed for redundancy can inform their employers that they are pregnant, and the employer would have to reconsider the decision. The pregnant employee will be protected from dismissal unless the employer can justify it as "an exceptional case".

What does this mean for employers?

This is an Advocate General's Opinion and, as such, not binding. Employers need not therefore take any action for now. However, if the European Court of Justice does follow the Opinion, pregnant employees may benefit from protection as soon as they are pregnant, even if the employer is not aware of the pregnancy. This may open the door to more claims.

Porras Guisado v Bankia SA