The European Court of Justice (ECJ) has held in the case of Porras Guisado v Bankia SA and others that the Pregnant Workers Directive (PWD) only protects workers against dismissal once they have notified their employer of the pregnancy.
This decision will come as a relief to employers after the Advocate General's Opinion last year that the PWD could be interpreted as conferring protection from the beginning of the pregnancy, regardless of when the employer was informed.
Ms Porras Guisado was dismissed by Bankia SA, a Spanish bank, as part of a collective redundancy exercise. During the consultation period, agreement was reached as to the criteria which would be applied in selecting which workers would be dismissed, and which would be retained. Two categories of workers were given priority status: married couples and disabled employees whose disability was assessed as being at a particular level of severity.
Ms Porras Guisado was not in either of these categories and was selected for redundancy as a result of her low score in the agreed assessment process. She was pregnant when she was dismissed, but Bankia claimed to be unaware of this at the time of the dismissal.
The PWD provides for a protected period from the beginning of pregnancy to the end of a worker's maternity leave, though in order to meet the definition of a "pregnant worker" the worker must have informed her employer of her pregnancy. The Advocate General held last year that the PWD could be interpreted as conferring protection from the beginning of the pregnancy, regardless of when the employer is informed, but the ECJ has disagreed.
Take note: The ECJ's decision confirms that employers will have to know about a worker's pregnancy in order to face claims for discrimination on grounds of pregnancy. It remains the case that an employer dismissing an employee on the basis that she might be or might become pregnant (whether or not she is) will have committed an act of direct sex discrimination.
Redundancy protection for pregnant workers under UK law remains in line with the PWD. A woman on maternity leave is entitled to preferential treatment with regard to alternative employment if a redundancy situation arises, but the employer may still dismiss fairly if no suitable vacancy exists.
This article is taken from HR Law – March 2018.
