The Hungarian Constitutional Court (Alkotmánybíróság) (HCC) has delivered a decision on the constitutionality of the rules of redundancy protection in Hungarian Labour Code on 27 May 2014. According to the decision, the current rules of the Labour Code, which provide as a conditions precedent for redundancy protection due to pregnancy and participation in fertility treatments are not proportionate and contrary employee's privacy rights. The HCC ruled that the fact that an employee participate in fertility treatments or the fact that the employee is pregnant form part of the private sphere of the individual and this information is protected as a personal data. On the other hand, it is also legitimate interest to request information from employees on this status in order that an employer can apply protective rules on health and safety, working time and working conditions. When balancing these interests, the HCC ruled that the requirement that employees have to provide prior notice on their pregnancy and fertility in order to be protected from redundancy is not a proportionate restriction of the right of privacy and therefore unconstitutional.
The ruling of the HCC only covered the prior notice requirement in the Labour Code. As the consequence of this, the Labour Code still contains the rules that as condition precedent of the protection, the employee must still inform the employer on the on their pregnancy or the fact that they participate in fertility treatments. Based on the HCC decision, however, it is sufficient that the employee inform their employer on their protected status only when the employer intends to communicate the termination notice or when they are informed that they are subject to a mass redundancy process. This does not impact the fact that employees must inform their employer on the pregnancy in order to benefit from special rules applicable to pregnant mothers on working time and health and safety.
An important part of the HCC's decision is that the court indicated based on the Labour Code's general principle that the parties have to cooperate in good faith and inform each other on circumstances relevant to their employment. If an employee is aware of her pregnancy when the notice letter is communicated and does not inform the employer, she cannot later rely on the protection as this means of breach of the employee's duly to cooperate with the employer in good faith. However, if the employee was not aware of the pregnancy at the time the notice is communicated, then the protection from dismissal applies as the employee was not in breach of her information obligation when the notice was communicated.
Although it is not expressly mentioned in the HCC decision, the same reasoning can apply after the notice has been communicated. Thus, if the employee notifies the employer about the pregnancy after the termination notice was communicated and as a result the employer is willing to withdraw the notice (which requires consent by the employee) but the employee refuses such consent, this can be also construed as a breach of cooperation obligations and that may be used as a defence in case of litigation.