In Guisado v Bankia SA and others, the European Court of Justice (ECJ) held that there is nothing in EU law to prevent a pregnant worker from being included in collective redundancies.
In January 2013, the Spanish company Bankia SA began consulting with employee representatives about proposed collective redundancies. The employer agreed redundancy selection criteria with the employee representatives.
In November 2013, Bankia SA notified Ms Guisado, who was pregnant, by letter that she was being made redundant. That letter stated, among other things, that staff numbers were being significantly cut and that she had received a low score under the redundancy selection matrix. The employer was unaware at the time that Ms Guisado was pregnant.
Ms Guisado challenged her dismissal unsuccessfully in a local Spanish court and appealed to the Catalonian High Court of Justice. The Court asked the European Court of Justice (ECJ) for guidance on:
- the interpretation of the prohibition on the dismissal of workers who are pregnant and workers who are on maternity leave, save in exceptional cases not connected with their pregnancy or maternity leave, under art.10 of the Pregnant Workers Directive (92/85/EC); and
- the interaction between the prohibition under art.10 of the Pregnant Workers Directive and the provisions of the Collective Redundancies Directive (98/59/EC).
The ECJ held that the Pregnant Workers Directive does not preclude national legislation that allows an employer to dismiss a pregnant worker in the context of collective redundancies.
The ECJ accepted that a decision to dismiss that is made for reasons that are essentially connected with the worker's pregnancy is incompatible with the prohibition on the dismissal of workers who are pregnant or on maternity leave under art.10 of the Pregnant Workers Directive.
However, the ECJ went on to say that a dismissal decision taken at some point from the beginning of pregnancy to the end of maternity leave for reasons that are unconnected with the worker's pregnancy is not contrary to art.10, as long as the employer:
- gives "substantiated grounds" for the dismissal in writing; and
- the dismissal of the individual is permitted under national legislation and/or practice.
The ECJ said that the combined practical effect of the two Directives is that employers faced with making a worker who is pregnant or on maternity leave redundant must:
- set out in writing the reasons for making her redundant (ie economic or technical reasons or reasons related to the employer's organisation or production); and
- inform the pregnant worker of the objective criteria chosen to identify the workers who are being made redundant.
The ECJ also concluded that the Pregnant Workers Directive does not require national legislation to provide for pregnant workers, workers who have recently given birth or workers who are breastfeeding to be given priority status in relation to either being retained or redeployed during collective redundancies. However, the ECJ noted that there is nothing to stop member states from granting higher protection of this nature, since the Directive sets out only the minimum protection required under EU law.
Implications for employers
Employers will have been concerned when the Advocate General in this case opined that collective redundancies do not always qualify as an "exceptional case" permitting the dismissal of a pregnant worker.
However, the ECJ decision confirms the status quo that a pregnant worker can be included in collective redundancies.
Under UK law, an employee who is made redundant while on maternity leave has special rights relating to being offered suitable alternative work.
UK law also provides that an employee who is dismissed while pregnant or on maternity leave is entitled to a written statement of reasons for the dismissal, irrespective of length of service and without having to make a request.