ECJ says no special treatment for pregnant workers made redundant

The European Court of Justice (ECJ) has ruled that in the event of collective redundancies, employers do not have to give special or priority treatment to pregnant workers. UK law does provide for some special treatment in redundancy situations and this seems unlikely to change.

Background

Pregnant workers are given certain protections under EU law. The Pregnant Workers Directive states that workers cannot be dismissed during the period from the start of their pregnancy to the end of their maternity leave, apart from in “exceptional cases”. These exceptional cases must be allowed under national law, and cannot be related to the employee’s pregnancy.

The ECJ’s decision

In Porras Guisado v Bankia SA and others, the ECJ ruled that the phrase “exceptional cases” may include collective redundancy. Therefore, any national legislation that allows employers to dismiss pregnant staff as part of a collective redundancy – so long as the dismissal is nothing to do with the worker being pregnant – is permitted under the Pregnant Workers Directive.

The ECJ also ruled that there is no need under EU law for pregnant workers (and those who have recently given birth or are breastfeeding) to be given any special treatment in terms of being retained or redeployed. Neither is there a need to state any exceptional grounds in the dismissal notice, beyond the grounds for the collective redundancy.

What does this mean for employers?

The ECJ’s stance is clear: pregnant workers can be treated the same as non-pregnant workers in collective redundancy exercises. No doubt this will come as a relief to employers. However, they still need to be cautious in any selection process to ensure that criteria are objective and do not indirectly prejudice pregnant workers or those on maternity leave (or other types of family leave).

What protection do workers in the UK have?

The good news for employees is that the UK’s law currently goes further than the minimum required by EU. In a redundancy situation, where there are alternative roles available, these must be offered in priority to any employees on maternity leave (or other family leave first). However, this does not apply to pregnant employees who have not yet started their maternity leave. In addition, in situations where a whole workplace or employer is closing down, this protection will not be of any benefit as there will be no alternative employment to offer (unless the employer is part of a larger group and vacancies can be with associated employers).

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