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:

• Article 10 of the Pregnant Workers’ Directive prohibits the dismissal of pregnant workers except in “exceptional cases”;
• The Pregnant Workers Directive requires a broad prohibition on dismissal of pregnant workers;
• Pregnant workers are protected from the beginning of their pregnancy even if they have not yet informed their employer that they are pregnant;
• For the dismissal of a pregnant worker to be lawful, there must be no plausible possibility of reassigning her to a suitable post;
• Pregnant workers do not have to be given priority for retention in a collective redundancy situation, though national law may choose to give them priority;
• What amounts to an “exceptional case” has to be construed narrowly. A collective redundancy situation will not necessarily be “exceptional”;
• A notice of dismissal of a pregnant worker must be in writing and state “duly substantiated” grounds regarding the “exceptional case” that permits the dismissal.

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”.