The Advocate General (AG) of the European Court of Justice (ECJ) has published an opinion in the case of Jessica Porras Guisado v. Bankia SA (C-103/16) stating that pregnant workers are protected from dismissal in all but exceptional cases including circumstances where an employer has not yet been informed of an employee’s pregnancy. 

The opinion of the AG, though not binding on the ECJ, will be considered by the Court before it gives a preliminary ruling in the case and is, therefore, worth noting.

Facts

Ms. Porras Guisado was employed by Bankia SA (the “Company”). In 2013, the Company commenced a collective redundancy consultation process. Following this process, Ms. Porras Guisado was informed that, owing to the low results achieved by her in the agreed assessment process, her employment would be terminated. The Company was not aware that Ms. Porras Guisado was pregnant at the time of her dismissal.

Ms. Porras Guisado challenged her dismissal unsuccessfully in the Spanish Social Court. On appeal, the High Court of Justice of Catalonia (the “National Court”) referred the case to the ECJ requesting an interpretation of EU legislation relevant to the case.

AG’s Opinion

In her opinion, the AG considered the interaction between the two EU Directives applicable in this case – the Maternity Directive (98/59/EC) (the “Maternity Directive”), which protects pregnant workers from dismissal “save in exceptional cases not connected with their condition” and the Collective Redundancies Directive (92/85/EEC) (the “Collective Redundancies Directive”), which allows for the dismissal of workers for “one or more reasons not related to the individual concerned”. Concluding that pregnant employees are entitled to protection under both directives, the AG responded to the matters raised by the National Court as follows:

Exceptional Case 

The AG concluded that while the Collective Redundancies Directive prevents dismissal for reasons related to the individual employee, the Maternity Directive widens the scope of protection for pregnant workers by requiring the circumstances in which dismissal may occur to be exceptional. 

The AG observed that a collective redundancy is not necessarily an ‘exceptional case’ for the purposes of the Maternity Directive, occurring as they do with a degree of regularity. 

The AG also concluded that where it is plausible to reassign a pregnant worker to another position during a collective redundancy, an exceptional case will not arise. 

The AG did acknowledge that in limited circumstances, a collective redundancy may prove to be exceptional, for example, if the establishment’s activities cease entirely. 

Retrospective Knowledge of Pregnancy 

As the Company was not aware of Ms. Porras Guisado’s pregnancy at the time of the dismissal, the question arose as to whether the protection of pregnant workers from dismissal under the Maternity Directive applies in circumstances when the employee has not informed the employer of her pregnancy.

The AG noted that the prohibition on dismissal in the Maternity Directive is expressly stated to apply “from the beginning of their pregnancy to the end of the maternity leave”. The AG concluded that a pregnant worker should be afforded protection from the beginning of the pregnancy and so the knowledge of the employer is not required. 

The AG did acknowledge, however, that the pregnant worker would have a duty not to unreasonably delay in notifying her employer of her pregnancy.  

The AG noted that under the Maternity Directive, pregnant workers are entitled not only to protection from dismissal itself but also to protection against the consequences of a dismissal that wrongfully took place, and suggested that an employer who undoes the mistake of dismissing a pregnant worker is acting in accordance with the Maternity Directive. 

Conclusion:

The AG has provided a robust endorsement of the rights of pregnant workers. The opinion is most notable for its assertion that the Maternity Directive applies retroactively to the beginning of the worker’s pregnancy. This interpretation appears to directly contradict the definition of “pregnant worker”, provided by the Directive itself, as a worker “who informs her employer of her condition”. 

While AG opinions are influential they are not binding on the ECJ and the court may make an alternative ruling. 

Contributed by:  Emma Lavin 

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