Collective redundancy and pregnant workers

Sally Robertson

In this blog Sally Robertson considers yesterday’s judgment by the Court of Justice of the European Union on pregnancy and collective redundancies - Porras Guisado v Bankia SA Case C-103

Last September, in the context of whether a pregnant woman should have been given priority in a collective redundancy exercise, Advocate General Sharpston’s Opinion caused some waves. In contrast, the CJEU judgment, handed down on 22 February 2018, is far less exciting.

AG Sharpston had focused on the tension in the Pregnant Workers Directive 92/85/EEC between the definition of ‘pregnant worker’ in Article 2(a) and the protection against dismissal in Article 10. The prohibition in Article 10(1) is expressly stated to apply ‘from the beginning of [the] pregnancy’. Yet that is a point at which a woman cannot possibly comply with the Article 2(a) requirement to have informed her employer of her condition in accordance with national legislation and/or national practice.

To resolve that tension AG Sharpston had recommended, as the ‘better reading’ of the Directive, that priority be given to protecting female workers ‘during the period 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.

In the event, the CJEU deliver a prosaic judgment. An employer’s knowledge of pregnancy came into play only on the admissibility issue: any tension between Articles 2 and 10 was put to one side.

One of the arguments Bankia SA had put against the admissibility of the reference was that the questions referred were hypothetical. That was because Ms Porras Guisado had not informed it of her pregnancy. So she did not count as a ‘pregnant worker’ for purposes of the PWD 92/85.

The CJEU declared the request for a preliminary ruling admissible because the referring court had specifically stated that the request for a preliminary ruling sought to ascertain whether Spanish law constituted a correct transposition of Article 10; that the pregnancy was not disputed; and that the Court file showed that in the context of the national proceedings Ms Porras Guisado had submitted she had told colleagues and superiors. That was sufficient for admissibility.

On the substantive referral, the answers to the questions referred should reassure employers. It is in accordance with Article 10 to dismiss a pregnant woman during a collective redundancy exercise if the employer cites the objective criteria chosen to identify the workers to be made redundant. An employer does not have to give priority status to pregnant women in relation to retention or redeployment. However, the Directives do not exclude the right of member states to provide for a higher level of protection for pregnant workers. The CJEU also held that Directive 92/85/EEC precluded protection by way of reparation, ie after dismissal, by declaring it void when unlawful. The protection had to be preventative. Apart from that, business as usual.