Dismissal of pregnant women during probation

Maria Camilleri Bovey asks:
What rights does the EU give to working women, especially those who are pregnant?

I was employed as a teacher at the Bishop's Conservatory Secondary School in Victoria but my job was terminated abruptly during my probation at a time when I had become pregnant. At the time of termination, I was on medical leave due to my pregnancy. However, my job was officially "terminated under probation" regardless.

I would like to know whether EU law offers me any protection.

At the outset, let me state that before bringing this matter to my column I sought the views of both sides involved and I am grateful for their full cooperation in providing me with their version of the facts.

The reader was dismissed from her job during probation. Normally, employers are entitled to terminate employment during probation. No questions asked.

However, in this particular case there is an added factor. The dismissal took place at a time when the reader had become pregnant and when she was on medical leave related to her pregnancy. She was dismissed just before the end of her probation.

Let's have a look at what the law states.

EU law makes it clear that member countries must prohibit the dismissal of workers during the period from the beginning of their pregnancy to the end of maternity leave. Dismissal is only allowed in exceptional cases "not connected with their condition". That seems clear enough and this EU rule is duly reflected in Maltese law.

However, Maltese law also states that employment may be terminated during probation at will by either party without assigning any reason. Indeed, the rule of non-dismissal during pregnancy is subordinated to the rule of free dismissal during probation. This too seems clear.

So there appears to be a conflict. On the one hand, EU law prohibits termination during pregnancy in all but exceptional cases. On the other, Maltese law appears to subordinate this rule to the more general rule of free dismissal during probation.

Now it is common knowledge that, in case of conflict, EU law should prevail. And since EU law prevails over national law, then, to my mind, the rule that ought to prevail in this case is that a person may not be dismissed during pregnancy, even if this happens during the probation period.

So even if, under normal circumstances, an employer is entitled to dismiss an employee during probation, to my mind, this could not have been done on this occasion because the reader was pregnant and EU law lays down that a worker may not be dismissed when she is pregnant.

To be sure, as I noted, EU law does allow dismissal during pregnancy 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.

However, my view is that this particular case cannot reasonably be considered as an "exceptional case". I do not see why the fact that dismissal was made during the probation period should make it exceptional and, therefore, justifiable. Moreover, in this case the dismissal was made when the reader was on medical leave due to her pregnancy. So there is an obvious link between the dismissal and the pregnancy.

Of course, one can argue that interpreting EU law in this way would mean that an under-performing worker who becomes pregnant can never be dismissed during probation. True. But if Maltese law allowed the free dismissal of pregnant women during probation, women could be dismissed during probation simply because they got pregnant. This cannot be right and it would put women at a significant disadvantage.

Of course, this is my interpretation of EU law. Ultimately, however, it is up to the courts, not me, to decide.

In synthesis, therefore, my view is that the reader should pursue the matter and seek redress.

I also feel that Maltese law should be changed to make it clear that employees who are pregnant may not be dismissed, even during probation. I have already taken this up with the national authorities and I hope that my request will be met positively. I also hope the authorities responsible for gender equality can take up this case and I am aware that the National Council of Women is already following it.

If my efforts do not prove successful, I will refer this matter to the European Commission.

Readers who would like to ask questions to be answered in this column can send an e-mail, identifying themselves, to contact@simonbusuttil.eu or through www.simonbusuttil.eu.