Collective redundancies: no priority treatment for pregnant workers


3 mins

Posted on 22 Mar 2018

Employers are not required to give pregnant workers priority treatment when carrying out collective redundancies.

Facts

In Porras Guisado v Bankia SA, Ms Porras Guisado was dismissed as part of a collective redundancy exercise as she achieved a low score in the selection process agreed with the employee representatives.  She was pregnant when her employer dismissed her but it claimed it was unaware of this.  Ms Porras Guisado challenged her dismissal in the Spanish Courts which referred a number of questions to the European Court of Justice (ECJ).

The ECJ’s Advocate General gave a somewhat controversial opinion on a number of the questions, including suggesting that the Pregnant Workers Directive protects a pregnant worker against dismissal from the beginning of her pregnancy, regardless of whether she has informed her employer that she is pregnant. 

The ECJ has now given its judgment.  

Decision  

The ECJ did not consider whether a pregnant worker is protected against dismissal before she has informed her employer of her pregnancy.   

Under the Pregnant Workers Directive, an employer can only dismiss a pregnant worker in exceptional cases unconnected with her pregnancy. The ECJ disagreed with the Advocate General and ruled that a collective redundancy situation will always be an exceptional circumstance permitting dismissal.  When providing written reasons for the dismissal, the employer simply has to explain the reason why collective redundancies are needed and give details of the objective selection criteria used to identify those being made redundant.  It does not have to provide any additional information in the case of a pregnant worker.  

Finally the ECJ ruled that a pregnant worker is not entitled to priority treatment in a collective redundancy exercise.  

Implications 

An employer can dismiss a pregnant employee when making collective redundancies, provided that the decision is unconnected to her pregnancy.  Although under EU law a pregnant worker is not entitled to any special treatment in terms of selection for redundancy or alternative employment opportunities, in the UK a woman whose role becomes redundant when she is on maternity leave has the right to be offered any suitable available vacancy.  Employers are required to provide written reasons for dismissing a pregnant worker or one who is on maternity leave, but UK law does not require them to include details of the selection criteria when providing this information.  Employers may wish to start including this information in the written reasons for dismissal provided to a pregnant worker.    

AS the ECJ did not consider whether a pregnant worker is protected against dismissal before she informs her employer of her pregnancy, the current position in the UK has not changed. Employers will only be liable for discrimination or unfair dismissal where they know of the employee’s pregnancy and act unlawfully as a result.  

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