Pregnant workers may qualify for protection before informing employer of their pregnancy

Advocate General Sharpston has given her view that the Pregnant Workers Directive (92/85/EEC) should protect workers against dismissal from the moment they become pregnant, even before they have notified their employer of the pregnancy. The Advocate General identified a tension in the directive between the protected period, defined as the period from the beginning of pregnancy to the end of maternity leave, and the definition of a pregnant worker as one who has informed her employer of her condition, in accordance with national legislation. In her opinion, this tension should be resolved in favour of pregnant workers, bearing in mind the objectives of the Pregnant Workers Directive. The Advocate General acknowledged that this interpretation may cause an employer unwittingly to dismiss a pregnant worker whom they ought not to have dismissed, and she urged the ECJ to clarify this issue in its judgment.

In answer to a number of questions about the interaction between the Pregnant Workers Directive and the Collective Redundancies Directive (98/59/EC) the Advocate General gave her view that a collective redundancy situation is not necessarily an "exceptional case" justifying the dismissal of a pregnant worker in all circumstances. Rather, it is for national courts to determine whether a particular collective redundancy situation is an "exceptional case". In order for it to be lawful to dismiss a pregnant worker, there must be no plausible possibility of reassigning the pregnant worker to another suitable post. Where the worker cannot be reassigned, the exception in the Pregnant Workers Directive will apply. (Porras Guisado v Bankia SA and others (Case C-102/16).)

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