In Porras Guisado v Bankia SA and others (Case C-120/16) the High Court of Justice of Catalonia (High Court) considered the dismissal of a pregnant worker in line with the provisions in the Collective Redundancies Directive (CRD) and the Pregnant Workers Directive 92/85/EEC (PWD). 

The Advocate General concluded that a collective redundancy situation is not necessarily an "exceptional case" which can be used to justify the dismissal of a pregnant worker. Further, the PWD should protect workers against dismissal from the moment they are pregnant, even if they have not yet informed their employer of their pregnancy.

Background Law

Employers who embark on a collective redundancy process must adhere to the requirements set out in the CRD. In the UK, the CRD is implemented by the Trade Union and Labour Relations (Consolidation) Act 1992.

Throughout the collective redundancy process, certain categories of workers, such as those covered by the Pregnant Workers Directive 92/85/EEC (PWD), are given special protection (e.g. given priority during the selection process). The PWD covers workers who are pregnant, have recently given birth and/or who are breastfeeding.

Article 10 of the PWD prohibits the dismissal of pregnant workers except in "exceptional cases" and provides that member states must take necessary measures to prohibit the dismissal of pregnant workers, from the beginning on their pregnancy until the end of their maternity leave.

In the UK, the Equality Act 2010 also prohibits pregnancy and maternity related discrimination and it is automatically unfair to dismiss a woman or select her for redundancy for a reason connected to the pregnancy or statutory maternity leave during a "protected period". Regulation 10 of the Maternity and Parental Leave Regulations 1999 also ensures that women on maternity leave are entitled to preferential treatment.

Facts

The Claimant was dismissed as part of a collective redundancy exercise because she received a low score in the agreed assessment process. The Claimant's contract of employment was terminated on 10 December 2013, by which point, she was pregnant. The employer claimed that it did not know that the Claimant pregnant at the time.

On 3 February 2014, the Claimant lodged an application to challenge her dismissal before the Social Court No.1 of Mataró (Social Court). She was unsuccessful and appealed the decision to the High Court. The High Court sought a preliminary ruling from the ECJ regarding the interaction between the PWD and CRD. The employer claimed that the PWD did not apply to the Claimant because she had not told them that she was pregnant at the time of dismissal.

The High Court asked the ECJ a number of questions, including:

• Is a collective redundancy situation an "exceptional case" that can be used to justify the dismissal of a pregnant worker?
• In the event of a collective redundancy, in order to decide whether there are exceptional cases which justify the dismissal, is there a requirement for the employer to prove that the worker concerned cannot be reassigned to another work post? Or, is it sufficient for her dismissal to be based on proof of economic or technical reasons, or reasons relating to production that affect her work post?
• Is national legislation, which gives no priority for retention in the undertaking to pregnant workers in cases of collective redundancy, compatible with Article 10(1) PWD?

Decision

The AG gave the following opinion:

• A collective redundancy situation is not necessarily an "exceptional case" that can be used to justify the dismissal of a pregnant worker. National courts must decide what constitutes an "exceptional case".
• In the context of collective redundancy, if a pregnant worker can plausibly be reassigned to another suitable work post, they should be. Any derogation from the prohibition of dismissal will not apply.
• Member States are not required to make specific provisions for pregnant workers i.e. employers do not need to give pregnant workers priority for suitable alternative roles in a collective redundancy situation. Member States may, however, make such provisions if they so desire.

The AG also drew attention to the tension in the drafting of the PWD, in relation to the protected period. Article 10 contains an unequivocal prohibition on the dismissal of pregnant workers from the beginning of their pregnancy to the end of the maternity leave, as referred to in Article 8(1). Yet, Article 10 can also be read to say that: "unless and until a pregnant woman informs her employer of her pregnancy, the prohibition on dismissal does not apply", which limits the protected period in favour of the employer. Of course, at the very beginning of a pregnancy the worker herself may not know she is pregnant which means she cannot comply with the requirement to inform her employer of her condition. Further, once she finds out, there will usually be a lapse in time before she informs her employer.

The AG suggested the PWD should be read so that pregnant workers are be given priority: "…during the period from the beginning of their pregnancy to the end of maternity leave" even though they may not yet have informed their employer of their condition. The AG acknowledged that this reading clearly struck the balance in favour of the pregnant worker. The AG urged the ECJ to clarify this point in their judgment.

In addition, the AG established that, in order to be valid, a notice of dismissal must be in writing and state duly substantiated grounds regarding the exceptional cases that are not connected with the pregnancy but which permit the dismissal.

Comment

It is important to point out that the AG has only provided an opinion on this case and her views may not be followed by the ECJ in their final judgment.

Nonetheless, the AG's view that the PWD will be interpreted to protect workers against dismissal from the moment they are pregnant, even before they have notified their employer of their pregnancy, is significant. This clearly strikes a balance in favour to the pregnant worker. Employers may be concerned, therefore, that they could fall into the trap of unwittingly dismissing a pregnant worker whom they should not have dismissed.

However, in this scenario, the employer would still have the opportunity to undo the damage inadvertently caused provided that they are made aware of the error soon after the dismissal occurs. For example, if the employer re-hired and/or reassigned the worker, they would be acting entirely in accordance with Article 10 of the PWD. It may also be reassuring for employers to know that the dismissed worker has a duty to notify her employer about her pregnancy without unreasonable delay.

So, what does this mean for maternity leave? It may be the case that pregnant workers who have been dismissed have not enjoyed any or all of her maternity leave. Under UK law, if a woman is made redundant during her maternity leave, she is put at the front of the queue for any suitable alternative vacancies. However, the AG's opinion clarifies that, if she has not yet started her maternity leave, employers do not have to prioritise pregnant workers for retention in a redundancy exercise. The ECJ's judgment on this issue, along with the points raised above, will be eagerly awaited in the coming months.

Porras Guisado v Bankia SA and others