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Advocate General suggests pregnancy protection should pre-date employer notification

BY Gerry O'Hare
Employment Law & HR
BG Purple

As the law currently stands, in the UK a woman will not benefit from statutory pregnancy / maternity protection (i.e. protection from discrimination or dismissal) until her employer has been made aware that she is pregnant and acts unlawfully as a result.

However a recent Advocate General’s opinion in a case before the European Court of Justice, Porras Guisado v Bankia SA (C-103/16), suggests that Article 10 of the Pregnant Workers Directive (92/85/EEC) (PWD) should be engaged before a worker has made their employer aware of their pregnancy. Article 10 contains the prohibition on dismissal for pregnant workers unless there is an exceptional reason.

The Advocate General noted that there is currently a grey area in the application of the Directive, where a worker does not benefit from protection at the very beginning of her pregnancy when she does not know that she is pregnant. At this point she cannot possibly inform her employer of her pregnancy. To resolve this issue, the Advocate General suggests that the pregnant worker should be protected even when she does not know of her pregnancy. The AG justified the opinion by stressing that the objective behind the PWD was to recognise that pregnant women are a vulnerable group and give them special protection in the workplace.

It was acknowledged that this would cause obvious difficulties when an employer unknowingly dismisses a pregnant worker. However, the AG suggested an employer could rectify the situation in dismissal cases by re-instating the employee or re-opening dismissal proceedings so that the decision maker could take account of the pregnancy in coming to their decision.

It has been generally accepted up until now that workers are not protected if they do not inform their employer of their pregnancy. This interpretation of Article 10 of the PWD seems to be in direct contrast with Article 2(a), which expressly states that the protections open to a pregnant worker begin when she informs her employer of her pregnancy. This opinion has therefore thrown accepted wisdom into doubt. However, employers should bear in mind that opinions of Advocates General are not binding and are issued as an aid to help the ECJ decide the case. ECJ judges can, and often do, deviate from the opinion of the AG. It is hoped that the final decision from the ECJ in this case will bring clarity for employers following this unusual opinion.

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