- The ECJ has confirmed that there is no EU law requirement to give priority to a pregnant worker in the context of collective redundancies. The prohibition on dismissing workers whilst pregnant or on maternity leave does not apply where there are "exceptional cases" unconnected with their condition, and the Court confirmed that this exception can include collective redundancy. The Advocate General's opinion in this case had attracted some attention as it took the view that pregnant workers' protection from dismissal should apply from the moment they become pregnant, even before they have notified their employer of the pregnancy (whereas, under UK law, protection is thought to start from the point at which the employer is aware). The ECJ did not need to rule on this point as it decided that it was not relevant on the facts. (Porras Guisado v Bankia SA) Employers will be reassured that UK law is largely compliant with EU law in this area. UK law does not prohibit dismissal in such circumstances, but does go further than required by the Pregnancy Worker Directive in giving priority over suitable vacancies to those on maternity leave who are at risk of redundancy. It is also worth noting the ECJ's view that written reasons of dismissal in these circumstances should include the reasons for the redundancy and the relevant objective selection criteria – UK law simply requires 'written reasons'.
- A claim for automatic unfair dismissal by reason of pregnancy and pregnancy discrimination will not succeed if the employer can show that it was not aware of the pregnancy at the time of the decision to dismiss. The EAT in Really Easy Car Credit Ltd v Thompson has confirmed that an employer is not obliged to revisit a decision to dismiss an employee where it discovers that the employee is pregnant after making, but before communicating, the decision. This is so even if the decision was based on conduct which may well have been pregnancy-related. The case highlights the importance of contemporaneous notes showing when the decision was taken, particularly if there is going to be a delay between taking and communicating the dismissal.
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.