Advocate General Sharpston has given her view that under the Pregnant Workers Directive (the Directive) pregnant workers should be protected against dismissal from the moment they become pregnant, even before they have notified their employer of the pregnancy. Employers could therefore find themselves in the invidious position of owing an obligation to protect from dismissal an employee whom they may not know to be pregnant and who may not even herself know that she is pregnant. Whilst the AG’s opinion is often followed by the ECJ, it is not always the case, so it will be a few months yet before we know whether the ECJ will adopt this opinion.
Member states are obliged to take necessary measures to prevent the dismissal of pregnant workers from the start of their pregnancy, through to their return from maternity leave, save where there are “exceptional” circumstances not connected to their condition.
As well as considering the point in time that the protection begins, Advocate General Sharpston also had to consider this issue in the context of a collective redundancy situation. Her opinion was that in order for the dismissal of a pregnant worker to be lawful, there would have to be no possibility of reassigning her to another role – as would be the case, for example, if there was a shutdown of the entire workplace. If this approach is correct, then the UK’s compliance with the Directive is in doubt.
The AG acknowledged the difficulties that her opinion may cause for employers, but considered that it was in line with the objectives of the Directive to protect pregnant workers. If followed, the UK will have to revisit the current level of protection afforded to pregnant workers.