Advocate-General gives opinion that pregnant workers are protected before they notify their employer of their pregnancy

In the Spanish case of Porras Guisado v Bankia SA and others, the Advocate-General has recently given an Opinion on the interaction between the Collective Redundancies Directive (CRD) and the Pregnant Workers Directive (PWD).

The European Union PWD prohibits the dismissal of workers during the period from the beginning of pregnancy to the end of maternity leave, save in exceptional cases. Under the European Union CRD collective redundancies are defined as dismissals for a reason not related to individual workers.

Ms Porras Guisado was dismissed by Bankia SA during a collective redundancy exercise because of her low scores in a selection process which had been agreed with employee representatives. The Bank was unaware that she was pregnant at the time of her dismissal. In subsequent legal proceedings, the Bank argued that the PWD did not apply to Ms Porras Guisado because she had not told them that she was pregnant at the time of her dismissal. Several issues relating to the interaction between the PWD and the CRD were referred to the ECJ by the Spanish court.

The Advocate-General’s Opinion included the following points:

• the PWD contains some ambiguous drafting which could either mean that a pregnant worker is only protected from dismissal once she has informed her employer of her pregnancy; or that dismissal is prohibited from the moment the worker becomes pregnant until the end of maternity leave. In the Advocate-General’s view, this ambiguity should be resolved in favour of pregnant workers, so that they are protected even before they have notified their employer of the pregnancy. Although this might mean that an employer could unwittingly dismiss a pregnant worker, they would have the opportunity to rectify this once informed of the pregnancy. The Advocate-General also confirmed that a dismissed employee would be under a duty not to delay unreasonably in notifying the employer of her pregnancy and submitting a claim;
• what amounts to an exceptional case that can be used to justify dismissal of a pregnant worker under the PWD must be decided by national courts. A collective redundancy situation is not necessarily an exceptional case;
• in order for it to be lawful to dismiss a pregnant worker, there must be no other suitable position available for her. Where reassignment is not possible in a collective redundancy situation, the PWD exception will apply. This means that there is no obligation to retain a pregnant worker; and
• when dismissing a pregnant worker, an employer must set out in writing the exceptional circumstances unconnected with the pregnancy which justify dismissal.

The Spanish legislation implementing the PWD and the CRD differs from UK legislation, and the Advocate-General’s Opinion in most respects accords with UK law. However, in the UK, pregnant workers are only protected from dismissal and discrimination once they have informed their employer of their pregnancy, and it will be interesting to see if the ECJ follows this more controversial aspect of the Advocate-General’s Opinion. In addition, depending on the ECJ’s full judgment, UK employers may be required to provide more detail explaining why a dismissal is justified as an exception to the rule that the dismissal of a pregnant worker is prohibited.