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Case update (2): Sex discrimination – Pregnant workers

Summary: Are pregnant workers protected from the beginning of their pregnancy, even before the employer is aware of the pregnancy?

Yes, says Advocate General Sharpston in Porras Guisado v Bankia SA, available here.

Facts:  The employee, Ms Porras Guisado was dismissed, whilst pregnant, by her employer, a Spanish bank, as part of a collective redundancy exercise.  Ms Porras Guisado disputed her dismissal and her employer claimed that it had not known that she was pregnant. In any event, the employer argued that the redundancy situation was an “exceptional case”, meaning that it was entitled to dismiss her despite her pregnancy.

The case was referred to the CJEU for a preliminary ruling.  Prior to this ruling, Advocate General Sharpston has given her Opinions on the questions raised.  The most relevant of these Opinions to UK employers are:

Implications:  In the UK, it is generally accepted that a woman will not benefit from the statutory protection on account of her pregnancy from discrimination or dismissal until her employer is made aware that she is pregnant. If this Opinion is followed by the CJEU then this may need to change.  However, no action is required by employers yet.

In particular, if the Opinion is followed by the CJEU, employees who have been notified that they are to be dismissed for redundancy can inform their employers that they are pregnant and the employer would have to reconsider the decision. The pregnant employee will be protected from dismissal unless the employer can justify it as “an exceptional case”.

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