201711.08
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More protection for pregnant workers?

 

More protection for pregnant workers?

Guisado v Bankia SA

Pregnant workers in the UK are protected by the Equality Act. The legislation makes pregnancy and maternity discrimination unlawful, the relevant period being the start of the worker’s pregnancy to the end of their maternity leave or when they return to work (if earlier).

It is also automatically unfair to dismiss a worker, or to select her for redundancy, when the reason or main reason is connected to her pregnancy or statutory maternity leave. This doesn’t mean that a pregnant woman or a new mum cannot be dismissed, but employers must be careful to ensure that the reason for this is not pregnancy/maternity-related.

A Spanish case involving a pregnant worker who was dismissed as part of a collective redundancy has been making its way through the courts. Her employer said it was unaware of her pregnancy when it dismissed her. This all led to a referral of a number of questions to the CJEU and, so far, an opinion (a non-binding view) of the Advocate General that, among other things:

  • a pregnant woman qualifies for protection from dismissal from the beginning of her pregnancy, regardless of whether or not she has told her employer about it;
  • a collective redundancy situation (which, in the UK, means the dismissal over a period of 90 days of at least 20 workers) may be an ‘exceptional case’ justifying the dismissal of a pregnant worker. However, it’s more likely that a collective redundancy will not be considered to be sufficiently unusual or extraordinary unless it comes as the result of the entire closure of a division or of a business, for example. And there would need to be no feasible possibility of reassigning the worker to another role.

If the Opinion is followed, pregnant employees could find that they are better protected when it comes to the early days of their pregnancy (including before they tell their employer), and perhaps in relation to collective redundancy. The CJEU’s word on this is now eagerly awaited.