ECJ: Pregnant and breastfeeding workers can be dismissed on grounds of collective redundancy

European Court of Justice: While dealing with the issue regarding the interpretation of Article 10(1) and (2) of Council Directive 92/85/EEC of 19 October 1992 (also known as Pregnant Workers Directive, 1992) on the measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, the Court (Third Chamber) composed of L. Bay Larsen, President of the Chamber, J. Malenovský, M. Safjan (Rapporteur), D. Šváby and M. Vilaras, JJ., held that pregnant and breastfeeding women can be dismissed on the grounds of collective redundancy as Directive 92/85 excludes national legislation (in present case, the Spanish law) which does not prohibit, in principle, the dismissal of a worker who is pregnant or has recently given birth or is breastfeeding, as a preventative measure. It only provides, by way of reparation, to declare such a dismissal void when it is unlawful.

In January 2013, the Spanish company Bankia, opened a period of consultation with its workers’ representatives with a view to carrying out a collective redundancy. After arriving upon an agreement, the company notified a worker, who was pregnant at the time, of her dismissal by letter on the ground that it was necessary to significantly reduce the number of staff. After unsuccessfully challenging the decision of the company before the Social Court, Mataró, the aggrieved person appealed before the High Court of Justice of Catalonia, which in turn referred the matter to the ECJ, seeking an interpretation of the prohibition on dismissing pregnant workers, provided in Directive 92/85.

Perusing the laws on point, the Court observed that 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. Further interpreting the provision in question, the Court held that, the Directive does not preclude national legislation which in the context of a collective redundancy, makes no provision for pregnant workers or who have recently given birth or who are breastfeeding, to be afforded a priority status in relation to either being retained or redeployed and the Member States are free to grant higher protection to pregnant workers and breastfeeding mothers. [Jessica Porras Guisado v. Bankia SA, Case C-103/16, decided on 22.02.2018]

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