An Advocate General of the Court of Justice of the European Union has recently given her opinion in an interesting case involving pregnant workers and redundancy.
Facts of the Case
The case concerned a Spanish company that began a consultation exercise in January 2013 over possible collective redundancies. The following month it reached an agreement over the criteria to be applied in selecting those workers to be dismissed and those who were to be retained in employment.
One of those selected for redundancy was Ms Porras Guisado, who was pregnant at the time. She challenged the decision to dismiss her in court, but was unsuccessful. She then appealed the decision and the appeal court referred the case to the Court of Justice for an interpretation on the prohibition on the dismissal of pregnant workers, and in particular how to interpret that prohibition in a collective redundancy procedure.
Protection during Pregnancy and Maternity Leave
In reaching her opinion, Advocate General Eleanor Sharpston noted 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.
She also noted that the Collective Redundancies Directive regulates dismissals in collective redundancies and defines them as ‘dismissals effected 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 was of the opinion that that the conditions permitting a pregnant worker to be dismissed should not be interpreted as corresponding exactly to the expression ‘one or more reasons not related to the individual workers concerned’.
She highlighted that within the context of the Collective Redundancies Directive there are situations that are deemed to be exceptional, but not every collective redundancy is an ‘exceptional case’ in the sense of the Maternity Directive. It is therefore up to 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.
Dismissal Only Possible in Exceptional Cases
The Advocate General therefore concluded that a collective redundancy does not always qualify as an “exceptional case” permitting the dismissal of a pregnant worker. In the context of a collective redundancy, the dismissal of pregnant workers can only take place in exceptional cases not connected to the pregnancy and when there is no plausible possibility of reassigning them to another suitable post
It is important to note 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 and will give their judgment at a later date. They will not decide the dispute itself though. It will be up to the Spanish court to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.
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