In Porras Guisado v Bankia SA and others the ECJ considered the dismissal of a pregnant worker in line with the provisions in the Collective Redundancies Directive and the Pregnant Workers Directive. 

In an employer-friendly decision, the ECJ concluded that a collective redundancy situation will be an exceptional case which can be used to justify the dismissal of a pregnant worker.  Furthermore, pregnant workers are not entitled to priority over other workers when it comes to retention or redeployment.

Background Law

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

The Pregnant Workers Directive (PWD) prohibits the dismissal of pregnant workers except in "exceptional cases" not connected with their condition and provides that member states must take necessary measures to prohibit the dismissal of workers, from the beginning on their pregnancy until the end of their maternity leave.  Where such a worker is dismissed, the employer must provide written reasons for the dismissal.

In the UK, the Equality Act 2010 prohibits pregnancy and maternity related discrimination. 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 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 in respect of alternative roles.

Facts

The Claimant was dismissed as part of a collective redundancy exercise because she received a low score in the agreed assessment process. Her contract of employment was terminated on 10 December 2013, by which point, she was pregnant.  At the time of her dismissal, the Claimant was pregnant.

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.   

Initially, 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.  However, by the time of the ECJ ruling it emerged that the Claimant had, in fact, informed her colleagues and managers of her pregnancy.  Accordingly, this issue fell away.

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?
• Is there a requirement for the employer to prove that the pregnant worker concerned cannot be reassigned to another work post? Should pregnant workers have priority when it comes to retention / redeployment in collective redundancy situations?

Advocate General's Opinion

The Advocate General gave a controversial preliminary opinion. She decided that:

• A collective redundancy situation was not necessarily an "exceptional case" that could be used to justify the dismissal of a pregnant worker. National courts should decide what constituted an "exceptional case".
• If a pregnant worker could plausibly be reassigned to another suitable work post, then they must be reassigned. However, Member States were not required to make specific provisions for pregnant workers i.e. pregnant workers did not have priority for suitable alternative roles in a collective redundancy situation (these two conclusions seem to be slightly at odds with each other).

The opinion also attracted attention because she concluded that workers were protected by the PWD from the moment of conception, even if they had not notified their employer.  However, as stated above, by the time of the ECJ hearing, the issue of whether the employer knew about the Claimant's pregnancy had fallen away and the ECJ did not rule on this issue.

ECJ's decision

The ECJ adopted a more moderate approach, deciding as follows:

• A collective redundancy situation could be an "exceptional case" that could be used to justify the dismissal of a pregnant worker, provided that the dismissal decision was unconnected to the worker's pregnancy (e.g. she did not receive a lower score in a redundancy scoring exercise because of her pregnancy). In this context, the employer is required to inform the worker in writing of: (i) the reasons for making the collective redundancies; and any (ii) criteria used to select individuals for redundancy. There is no requirement for any additional reasons to be given to justify the exceptional dismissal of a pregnant worker.
• Pregnant workers do not have special priority status in relation to retention or redeployment in a collective redundancy situation. However, if Member States wanted to introduce that higher level of protection for such workers, then they were free to do so.

What does this mean in practice?

The ECJ's decision will reassure employers by restoring the "business as usual" approach to the dismissal of pregnant workers in collective redundancy situations.

Firstly, it remains the case that employers are entitled to dismiss pregnant workers in the context of a collective redundancy situations for the reasons that have triggered the restructuring. There is no requirement for any special reasons to be identified. However, employers should note the requirement under EU law to provide the worker with both the written reasons justifying the redundancy and details of the criteria used in the selection exercise. Currently, UK law only stipulates that the reasons for the dismissal should be given.

Secondly, it confirms that pregnant workers are not entitled to priority when it comes to retention or redeployment. The Court noted that Member States were free to introduce this protection if they wished. The UK has gold-plated EU law here by providing that employees who are absent on maternity leave have priority rights for suitable alternative roles in redundancy exercises (under Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999). However, these priority rights do not currently extend to: (i) pregnant employees who have not started their maternity leave; and (ii) pregnant workers who have started their maternity leave but who are not employees.

Finally, because the issue of the employer's knowledge of the pregnancy had fallen away, the existing approach remains in place i.e. a "pregnant worker" is one who has informed her employer of her condition. In other words, protection crystallises once the employer has been notified of the pregnancy and not before.

Porras Guisado v Bankia SA and others