Laws relating to pregnancy and maternity are complex, with a range of protections afforded to employees during pregnancy and maternity leave. In relation to dismissal, European legislation prohibits the dismissal of employees from the beginning of their pregnancy to the end of their maternity leave, other than in exceptional cases not connected with their condition.
Essentially, this means that an employee who is pregnant or on maternity leave can be dismissed provided that the dismissal is not linked to them being pregnant or on maternity leave.
Additional protections can apply when pregnancy and maternity interacts with other laws. An example of this relates to redundancy, particularly where an employee who is either pregnant or on maternity leave is being considered for redundancy. Unsurprisingly, an employee cannot be selected for redundancy simply because they are pregnant or on maternity leave.
A potentially less well-known protection in the UK is that if a suitable alternative role becomes available in a redundancy situation, an employee on maternity leave must be given first refusal of the role. In that scenario, the employee on maternity leave ‘trumps’ any other employees who could potentially fill the vacancy. This is sometimes known as Regulation 10 protection (as it comes from Regulation 10 of the relevant UK legislation).
Regulation 10 protection does not currently extend to pregnant employees who have not commenced maternity leave; it kicks in only when the maternity leave period begins. It is therefore currently potentially lawful to select a pregnant employee for redundancy without giving them first refusal for other roles, provided that they have not yet commenced maternity leave (and their selection is not based on them being pregnant).
However, the Advocate General (AG) of the Court of Justice of the European Union (CJEU) has given an opinion that, if followed by the CJEU, may change how Regulation 10 protection operates.
In Porras Guisado v Bankia SA, Ms Guisado was selected for redundancy as part of a collective redundancy situation. Ms Guisado complained about her dismissal due to being pregnant, although her employer claimed that it was unaware of her pregnancy. The employer also argued that the collective redundancy situation was an exceptional case allowing them to make Ms Guisado redundant.
In relation to the exceptional case question, the AG stated that a collective redundancy situation will not necessarily be exceptional. The AG went further, stating that in a redundancy situation involving a pregnant employee there must be ‘no plausible possibility’ of reassigning that employee to another vacant post.
What may be more surprising is that the AG also opined that the European protections should apply even where the employer has not yet been informed that the employee is pregnant. If that becomes the case, an employer could potentially fall foul of maternity law for not giving an employee first refusal of a potential alternative role even where it has no idea that the employee is pregnant; something which the AG explicitly acknowledges in their opinion.
The CJEU is not bound to follow the opinion of the AG, but it will take it into account when making its decision. We will of course issue a further update if the CJEU decides to follow the AG’s opinion.
In the meantime, if you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.