A press release has been issued by the Court of Justice of the European Union on the 14^th September 2017 setting out an opinion given by the Advocate General in the case ‘Jessica Porras Guisado v Bankia SA, Fondo Garantia Salarial and Others’.

In the case in question, Advocate General Eleanor Sharpston, opined that in the context of a collective redundancy, the dismissal of pregnant workers may only occur in exceptional cases not connected to the pregnancy and in situations where there is no plausible possibility of reassigning them to another suitable post.

Facts of the case are as follows:

On 9 January 2013, the Spanish company Bankia S.A. (“Bankia”) opened a period of consultation with the workers’ representatives with a view to effecting a collective redundancy following which the negotiating committee reached an agreement setting out the criteria to be applied in selecting those workers to be dismissed and those who were to be retained in employment with Bankia.

dismissal of pregnant workers may only occur in exceptional cases not connected to the pregnancy and in situations where there is no plausible possibility of reassigning them to another suitable post

Bankia sent Ms Porras Guisado, who was pregnant at the time, a letter giving her notice of the termination of her contract of employment pursuant to the negotiating committee agreement. The dismissal letter stated, in particular, that in the specific case of the province where she worked an extensive adjustment to the workforce was necessary, and that in the assessment process carried out in the undertaking during the consultation period, her score had placed her among the lower scores of the province. Ms Porras Guisado lodged an application challenging her dismissal before the national court in Spain, which found in favour of Bankia. She appealed to the High Court of Justice of Catalonia, Spain, which requested the Court of Justice of the European Union to interpret the EU law provisions on the prohibition of the dismissal of pregnant workers, and more particularly how to interpret that prohibition in the event of a collective redundancy procedure.

In stating her opinion, Advocate General Sharpston, first considered that the Maternity Directive protects 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. The exception permitting the dismissal of pregnant workers only applies in exceptional cases not connected to the pregnancy. On the other hand, the Collective Redundancies Directive regulates dismissals in collective redundancies and defines them as ‘dismissals affected by an employer for one or more reasons not related to the individual workers concerned’. Regarding the interaction between the two provisions, the Advocate General considered that 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’. Within the context of the Collective Redundancies Directive there are situations that are, indeed, deemed to be exceptional. However, not every collective redundancy is an ‘exceptional case’ in the sense of the Maternity Directive. Therefore, it is for the national court to verify whether in the present case the collective redundancy qualifies as an “exceptional case”, in order to establish if the exception from the prohibition of dismissal applies.

The Advocate General further considered that in order to rely on the “exceptional cases” exception permitting the dismissal of a pregnant worker, it is not sufficient to invoke reasons that affect her post in the event of a collective redundancy, or indeed outside that context: there must also be no plausible possibility of reassigning the pregnant worker to another suitable post.

it is evident that there are ongoing efforts by EU institutions to interpret employment laws and regulations such that the rights of pregnant employees or employees availing of maternity leave are afforded protection to every possible extent

The Advocate General in her opinion concluded that for a notice of dismissal to fulfil the requirements of the Maternity Directive, it must be in writing and must also state duly substantiated grounds regarding the exceptional cases not connected with the pregnancy that permit 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.

It is noteworthy that the Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.

Notwithstanding the outcome of the case it is evident that there are ongoing efforts by EU institutions to interpret employment laws and regulations such that the rights of pregnant employees or employees availing of maternity leave are afforded protection to every possible extent.  Accordingly, employers must exercise great care and caution when dismissing a pregnant employee and must ensure that her pregnancy has no bearing whatsoever on her dismissal.