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

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Thursday 19 October 2017

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).)


Pregnant Workers Directive

Article 10 of the Pregnant Workers Directive (92/85/EEC) (PWD) provides that in order to guarantee the health and safety of pregnant workers and those on maternity leave:
  • Member States shall take the necessary measures to prohibit the dismissal of workers during the period from the beginning of their pregnancy to the end of the maternity leave, save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent.
  • If a worker is dismissed during the period referred to above, the employer must cite duly substantiated grounds for her dismissal in writing.
  • Member States shall take the necessary measures to protect workers from the consequences of dismissal which is unlawful by virtue of the above.
A pregnant worker is defined as a "pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice" (Article 2(a), PWD).
In the UK, pregnancy and maternity discrimination is expressly prohibited under section 18 of the Equality Act 2010. This section affords protection to workers during a "protected period" which starts at the beginning of a pregnancy, and ends at the end of the additional maternity leave period, or (if earlier) when she returns to work after the pregnancy. For more information, see Practice note, Pregnancy and maternity discrimination: Discrimination because of pregnancy and maternity. In addition, it is automatically unfair to dismiss a woman or to select her for redundancy when the reason (or principal reason) for the dismissal (or selection for redundancy) is connected to her pregnancy or statutory maternity leave (section 99, ERA 1996 and regulation 20, Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312)) (see Practice note, Pregnancy and maternity leave: the legal framework).




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