Pregnant workers may be dismissed on grounds of a collective redundancy
12 March 2018
In such cases, the employer must provide the dismissed pregnant worker with the reasons justifying the redundancy as well as the objective criteria chosen to identify the workers to be dismissed.
In a recent employment law case - Guisado v Bankia and Others - the Court of Justice of the European Union (CJEU) ruled that the Pregnant Workers Directive 92/85 does not prevent national legislation which allows an employer to dismiss a pregnant worker in the context of a collective redundancy.
Effectively, the Pregnant Workers Directive 92/85 prohibits the dismissal of workers during the period from the beginning of their pregnancy to the end of their maternity leave, save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice.
On 9 January 2013, the Spanish company Bankia opened a period of consultation with its workers’ representatives with a view to carrying out a collective redundancy. On 8 February 2013, the special negotiating body reached an agreement establishing the criteria to be applied in selecting the workers to be made redundant as well as the criteria for establishing priority status for retention in the company.
On 13 November 2013, Bankia notified a worker, who was pregnant at the time, of her dismissal by letter, in accordance with the agreement drawn up by the special negotiating body. That letter stated, among other things, in the specific case of the province where she worked it was necessary to significantly reduce the number of staff and that, as a result of the assessment process carried out in the undertaking during the consultation period, she had obtained a score that was among the lowest in the province.
The worker in question challenged her dismissal but the court ruled in favour of Bankia. She then appealed against that judgment but the CJEU said that a dismissal decision taken during the period from the beginning of pregnancy to the end of the maternity leave for reasons unconnected with the worker’s pregnancy is not contrary to the Pregnant Workers Directive 92/85, if the employer gives substantiated grounds for the dismissal in writing and the dismissal of the person concerned is permitted under the relevant national legislation and/or practice.