In the event of collective redundancy, the dismissal of a pregnant worker is only possible in exceptional cases not related to pregnancy and when there is no plausible possibility of giving the woman another vacant, compatible job, explained European Court of Justice Advocate General Eleanor Sharpston in conclusions issued on Thursday 14 September in case C-103/16.
In 2013, Ms Porras Guisado, who was pregnant at the time of her dismissal, challenged her redundancy from her employer, Spanish bank Bankia, as part of an agreement negotiated by the social partners. The redundancy was justified by the bank’s situation in the province of residence and the fact that the employee had received a low score in an assessment procedure. Rejected in the first instance, Porras Guisado took her case to the supreme court of Catalonia, which sent it to the European Court of Justice in a reference for a preliminary reading.
The advocate general points out that EU Directive 1992/85 protects pregnant workers from the beginning of pregnancy until the end of their maternity leave, even where they have not informed their employer that they are pregnant.
Sharpston says collective redundancy is not necessarily an exceptional case under the directive on pregnant workers (92/85/EEC) and it is for the member state’s court to verify whether it is an exception and whether the derogation to the ban on dismissal of pregnant workers should be applied.
Sharpston says that in order to be able to lawfully dismiss a pregnant worker under the exceptional case derogation, it is not enough to raise questions related to her job whether or not it is part of collective redundancy - there would have to be no plausible possibility of giving the pregnant worker another vacant post that is compatible with her pregnancy.
Moreover, in order to meet the conditions laid down in the pregnant worker directive, formal notice of the dismissal must be given in writing that sets out the modification for exceptional cases not related to pregnancy that permit the dismissal. Porras Guisado’s redundancy letter does not seem to mention any such justification.
The advocate general also doubts that current Spanish legislation meets all the requirements laid down in EU law as it only seems to provide a posteriori corrective protection against wrongful dismissal of a pregnant worker, while the EU directive requires preventive protection to be provided also. (Original version in French by Mathieu Bion)