Employers cannot use collective redundancy as an excuse to dismiss a pregnant worker, Eleanor V.E. Sharpston, Advocate General at the Court of Justice of the European Union, has recently opined. In the context of a collective redundancy, the dismissal of pregnant workers may only occur in exceptional cases not connected to the pregnancy and when there is no plausible possibility of reassigning them to another suitable post.
EU law protects the health and safety of pregnant women at the workplace. Among the measures adopted, the law clearly provides that women cannot be dismissed from work because of their pregnancy or maternity.
The facts of this case were briefly as follows. A Spanish company opened a period of consultation with the workers’ representatives with a view to effecting a collective redundancy. The negotiating committee reached an agreement setting out the criteria to be applied in selecting those workers to be dismissed and those who were to be retained in employment. In line with this agreement, a pregnant employee was given notice of the termination of her contract of employment.
The termination letter given to the said employee stated that in the specific case of the province where she worked, an extensive adjustment to the workforce was necessary and that in the assessment process carried out during the consultation period, her score had placed her among the lower scores of the province.
The employee lodged an application challenging her dismissal before the national court which found in favour of the company. Upon appeal, the appellate court filed a preliminary reference before the Court of Justice of the European Union (CJEU) requesting guidance on the interpretation of those EU legal provisions which prohibit the dismissal of pregnant workers and application of such a prohibition in a collective redundancy scenario.
In her opinion, the AG acknowledged that EU law protects female workers from the beginning of their pregnancy to the end of the maternity leave, even though they may not yet have informed their employer of their condition. Employers can only dismiss pregnant workers in exceptional cases not connected to the pregnancy.
However, EU law also regulates dismissals in collective redundancies.
Such redundancies are defined as dismissals effected by an employer for one or more reasons which are not related to the individual workers concerned.
The AG observed that EU law regulating collective redundancies contemplates situations that are, indeed, deemed to be exceptional. However, not every collective redundancy can be said to be an exceptional case, hence permitting the dismissal of a pregnant worker.
Employers must tread very carefully when dismissing pregnant workers
The AG affirmed that in order to rely on the “exceptional cases” exception permitting the dismissal of a pregnant worker, it is not sufficient to invoke reasons that affect her post in the event of a collective redundancy. There must moreover be no plausible possibility of reassigning the pregnant worker to another suitable post. The AG, however, clarified that “reassignment to another work post” does not equate to “retention in the undertaking”. Such reassignment is only possible if a post is vacant or if a vacancy can be created by transferring another worker to yet another post and then reassigning her to the post thus vacated.
On the other hand, retention in the undertaking means that, no matter what, that pregnant worker will continue in employment.
The AG made it clear that EU law does not require member states to make specific provision for pregnant workers to be afforded priority for retention in an undertaking in the event of a collective redundancy.
The AG concluded by noting that, for a notice of dismissal to fulfil the requirements of EU law regulating maternity at the workplace, it must both be in writing and state duly substantiated grounds regarding the exceptional case not connected with the pregnancy that permit the dismissal.
In the context of a collective redundancy, the employer in its notice of dismissal to a pregnant employee cannot simply provide the general reasons for redundancy and selection criteria, assuming that the specific circumstances of the collective redundancy in question constitute an ‘exceptional case’. It must furthermore clearly explain why the dismissal of a pregnant worker is permissible in the case in question.
The CJEU, during its deliberations on this case, now has the option to either abide by or reject the AG’s opinion.
Nonetheless, despite the outcome of this particular case, EU law and the interpretation given to it by the EU institutions, have to date, clearly done their utmost in order to safeguard women against unfair dismissal due to pregnancy or maternity.
As is evident from the above opinion, employers must tread very carefully when dismissing pregnant workers and ensure that the dismissal is truly not related to their pregnant state.
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property.
law.mariosa@vellacardona.com