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Are Pregnant Workers Protected From Dismissal Before They Inform Their Employer of Their Pregnancy?

07 November 2017

The Pregnant Workers Directive affords protection from dismissal to workers who are pregnant and on maternity leave. Members States are required take necessary measures to prohibit the dismissal of pregnant workers and those on maternity leave.

The Directive is implemented in the UK in various ways. The Equality Act 2010 prevents an employer from discriminating against an employee because they are pregnant or on maternity leave. Under the Employment Rights Act 1996, it is automatically unfair to dismiss an employee or select her for redundancy because she is pregnant or on maternity leave. The Maternity and Parental Leave etc. Regulations 1999 provide that an employee who is selected for redundancy whilst on maternity leave is entitled to be offered a suitable available vacancy.

This principle has been considered further by the Advocate General’s opinion in the case of Porras Guisado v Bankia SA & others. This is a Spanish case involving a pregnant worker who was dismissed by reason of redundancy following a collective consultation exercise. Ms Porras Guisado challenged her dismissal on the grounds that her selection for redundancy was contrary to the Pregnant Workers Directive. The employer said that the Directive did not apply because it was not aware of Ms Porras Guisado’s pregnancy at the time she was dismissed. A referral was made to the European Court of Justice.

The Advocate General has given her opinion on whether a worker is afforded protection under the Directive even if they have not yet told their employer that they are pregnant. The Directive says that pregnant workers are protected during the period beginning with their pregnancy. It also defines a pregnant worker as being someone who informs her employer of her condition. These two provisions conflict and, in her opinion, the Advocate General felt that a pregnant worker should be protected from day one, regardless of whether the employer is aware of her pregnancy. Although an employer may unknowingly dismiss a pregnant employee in breach of the Directive, they have the opportunity to rectify the breach once they are notified of the employee’s pregnancy.

The Advocate General’s opinion was swayed by the reason for the Pregnant Workers Directive, which is to afford greater protection to pregnant workers who are in a more vulnerable position.

The ECJ’s decision will follow shortly, at which time we will get clarity on this issue. If they agree with the Advocate General’s opinion, an employer may find themselves in a position where, at the time of dismissal, it was lawful but they subsequently face an allegation of unlawfulness when a worker discloses she is pregnant. In a redundancy situation, the selection process may have to be repeated in order to afford that additional protection to a pregnant worker.

By Michelle Tudor

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