Under the EU Pregnant Workers Directive (“PWD”), pregnant workers are protected from dismissal from the beginning of pregnancy to the end of maternity leave. The legislation defines a pregnant worker as someone who has told their employer they are pregnant. In the UK the Equality Act 2010 prohibits pregnancy and maternity discrimination during the “protected period” which starts at the beginning of pregnancy and ends when the worker returns to work following maternity leave.
A recent Spanish case has raised some interesting questions about whether a pregnant worker could qualify for protection before their employer even knows they are pregnant.
Ms Guisado worked for a Spanish bank. The bank embarked on a collective redundancy process and as a result of this Ms Guisado was dismissed. At the time of her selection for dismissal she was pregnant, but the Bank was unaware of her pregnancy. She issued proceedings in the Spanish court challenging her dismissal. Her claim was initially rejected so she appealed to the High Court of Catalonia. In considering her claim the court referred a number of questions to the European Court of Justice including whether it was possible for a worker to qualify for protection under the PWD when they have not yet told their employer they are pregnant. The court also raised a number of other questions relating to the PWD and in particular whether it requires pregnant workers to be given priority for retention in collective redundancy situations.
Advocate General’s opinion
Advocate General (AG) Sharpston delivered her opinion earlier this month. In considering the questions posed by the Spanish court she highlighted a tension within the PWD on the basis it provides for protection from the beginning of pregnancy but only defines a pregnant worker as someone who has informed their employer that they are pregnant. In her opinion this could be resolved either in favour of the employer (by making it clear that workers are only protected once they have told their employer) or in favour of pregnant workers (giving protection from the beginning of pregnancy).
AG Sharpston was mindful of the purpose of the PWD and the protection pregnant women need within the workplace. In view of this she felt the PWD should protect women from the beginning of pregnancy. She did acknowledge the difficulties this approach could expose employers to but seemed satisfied that they would have the chance to rectify any potentially unfair and/or discriminatory dismissal by reinstating that person or reopening the dismissal process.
In terms of priority for retention, AG Sharpston made it clear that in her view the PWD does not impose an absolute obligation on employers to retain pregnant workers but rather the employer must be able to demonstrate that there is no plausible possibility of reassigning them to another suitable post. This mirrors the position in the UK where pregnant workers are given priority in relation to any suitable alternatives when the redundancy arises during their maternity leave but do not qualify for the same priority when pregnant.
Whilst the AG’s opinion is not binding on the ECJ it is persuasive and therefore UK employers are likely to await the ECJ’s decision with interest. Should the court follow her opinion it will raise some potentially difficult issues for employers who may find themselves inadvertently dismissing an employee who it later transpires was pregnant. The AG has suggested that employers should not be too concerned about this on the basis they would have the chance to remedy any damage by reinstating the worker or going back though the dismissal procedure taking in to account the individual’s pregnancy. She also made the point that workers would be under a duty to notify their employer of their pregnancy without unreasonable delay. Whilst I think this approach is sound in principle, it fails to take in to account the disruption this would cause to an employer’s business and the time it would take to reopen any dismissal proceedings. It seems unfair to expose employers to this risk and is at odds with the approach currently taken in the UK where women don’t benefit from statutory protection until they have notified their employer of their pregnancy. What’s more it may also lead to dispute as to what amounts to unreasonable delay and evidencing when an individual actually found out they were pregnant.