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A collective redundancy does not always allow the dismissal of a pregnant worker, says CJEU adviser

Pregnant workers can only be dismissed during a collective redundancy in exceptional cases that are not connected to the pregnancy, and where there is no plausible chance of moving the worker to another role, according to advocate general Eleanor Sharpston of the Court of Justice of the European Union (CJEU).15 Sep 2017

The CJEU has been asked to rule on the prohibition on the dismissal of pregnant workers under the EU's maternity directive and how to interpret that prohibition in the event of a collective redundancy procedure.

The case relates to Spanish company Banksia, which opened a period of consultation with workers representatives in 2013 on a potential collective redundancy. The consultation resulted in a set of criteria for selecting workers to be dismissed.

Porras Guisado, who was pregnant at the time, was one of those selected for redundancy and received a letter giving her notice. That letter said that the province where she worked needed extensive adjustments to its workforce, and that she had scored poorly according to the criteria chosen during the consultation.

Guisado challenged this, and appealed to the High Court of Justice of Catalonia when the first court ruled in favour of Banksia.

The High Court referred the case to the CJEU, Europe's highest court, to decide how to interpret the provisions.  

The conditions permitting a pregnant worker to be dismissed, namely ‘exceptional cases not connected with [her] condition which are permitted under national legislation and/or practice’, should not be interpreted as corresponding exactly to the expression ‘one or more reasons not related to the individual workers concerned’, the advocate general said.

Within the context of the collective redundancies directive there are situations that are deemed to be 'exceptional', but not every collective redundancy is exceptional in the sense of the maternity directive, she said. It is therefore up to the national court to decide whether, in this case, the collective redundancy is exceptional, in order to decide whether the prohibition of dismissal applies.

It is not enough to give reasons that affect the worker's post in the event of a collective redundancy as creating an exceptional case, the advocate general said: there must also be no plausible possibility of reassigning her to another suitable role.

"Reassignment to another work post" is not the same as "retention in the undertaking", the advocate general said.

Reassignment to another work post is possible if such 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, while retention in the undertaking means that, no matter what, that pregnant worker will continue in employment. The maternity directive does not require member states to make specific provision for pregnant workers to be given priority for retention in a collective redundancy, advocate general Sharpston said.

If the directive has been transposed correctly into national law, the resulting legislation should normally ensure that a pregnant worker is retained in employment in the event of a collective redundancy, she said.

The maternity directive requires EU countries to provide preventive protection, protecting pregnant workers against dismissal, and reparative protection against the consequences of a prohibited dismissal that takes place anyway, the advocate general said.

The applicable Spanish legislation appears to provide that an unlawful dismissal is "void by operation of law", providing provide reparative protection rather than preventative protection. If that is right, the Spanish legislation would not appear to address the requirements of the directive, she said.

Finally, the advocate general said that notice of dismissal must be in writing and must state duly substantiated grounds on the exceptional cases not connected with the pregnancy that allow the dismissal.

In the context of a collective redundancy, a notice of dismissal which limits itself to providing the general reasons for the redundancies and selection criteria but does not explain why the dismissal of a pregnant worker is permissible because the specific circumstances of the collective redundancy in question make it an ‘exceptional case’ will not satisfy that test, she said.

Opinions of advocates general are not binding but are followed in the majority of cases.

Employment law expert Linda Jones of Pinsent Masons, the law firm behind said: "This is a surprising decision which would extend the protection given to pregnant workers if followed by the CJEU. The attorney general appears to be suggesting that a collective redundancy situation should not normally lead to a pregnant worker being made redundant, which would be a significant change to the current position where pregnant workers are not given any particular protection against redundancy, in contrast to those on maternity leave who are given priority rights for alternative roles."

"On the other hand, the judgment contradicts itself somewhat in that it says that there is no need to give pregnant workers priority for retention," Jones said.

"Hopefully the CJEU will provide some clarity as the attorney general’s decision has the potential to create a lot of confusion," she said.