Described as ‘one to watch’ the European Advocate General’s opinion in the case of Porras Guisado v Bankia SA and others (Case C-102/16) has sparked debate as to whether the UK has properly implemented the Pregnant Workers Directive.
In the UK, it is automatically unfair to terminate employment in connection with pregnancy. Pregnant workers are also protected from discrimination because of pregnancy under the Equality Act 2010.
However, the case may give workers protection even if they have not informed their employers of their pregnancy, and even extend to preferential selection for a suitable alternative role, in a redundancy situation. At present, an employee on maternity leave has such a right but a pregnant employee does not.
So, currently, if a woman’s role is made redundant while on maternity leave, she is entitled to be offered suitable alternative employment by her employer or associated employer if such a vacancy exists, adds Connie Cliff, PSL Principal Associate at Gowling WLG.
“Her right effectively trumps that of any other employee whose role is redundant at the same time. Extending this special protection to include the period from the beginning of their pregnancy (whether the employer already knows they are pregnant or not!) significantly increases the potential numbers of those with ‘top trump’ rights.”
The AG’s opinion is non-binding but if followed by the European Court (as if often the case) it could give a wider class of workers protection from termination of employment by reason of redundancy and/or be used to support an argument that the UK has failed to properly implement European Law.
Chris Braganza, Partner in the Employment and Business Immigration group at Sheridans, says: “Eleanor Sharpston is a brilliant Advocate General and, in my view, she’s spot on. The Pregnant Workers Directive is not really about discrimination – it’s about ensuring pregnant workers’ health and safety and minimising the chance of them having to look for a new job at potentially a very difficult time. Sure, this opinion that employees should be protected even before they or their employers know of the pregnancy will raise some eyebrows, but it’s correct.”
This Advocate General decision – which includes stating that pregnancy women are protected from Day one, even if the employer is unaware of the pregnancy – is very welcome, says Camilla Palmer, QC (Hon), CEO and Principal Solicitor at Your Employment Settlement Service.
“It is shocking that 54,000 women (1 in 9) lose their jobs each year for pregnancy or maternity leave reasons, according to EHRC research. Anything to tighten up the law to protect women who are pregnant or on maternity leave is, in my view, a very good thing – as would be similar protection for men taking shared parental leave,” says Palmer.
However, when you consider it from the employers’ point of view, the decision “throws up some real problems” says Phil Allen, Partner, at Weightmans LLP.
Allen says: “Thankfully this is only an opinion of an Advocate General rather than a binding decision of the ECJ, as this analysis throws up some real problems for employers. He adds that while the Advocate General “quite rightly acknowledges that pregnant women are a particularly vulnerable group deserving of special protection in the workplace” there are problems with it.
“The Advocate General’s interpretation of the law seems inherently unfair to employers, as a decision taken in good faith and without knowledge of the employee’s pregnancy could later be challenged,” says Allen.
What might it mean for employees?
It is odd that employees on maternity leave are given preference in redundancy situations but not those that are pregnant, says Sharon Latham, a partner at Clarke Willmott LLP and head of its Employment Team in Bristol. She thinks it is illogical to treat them differently.
“As to gaining protection before an employee says they are pregnant, that’s rife with problems too,” says Latham. “Employers will be worried to take any steps in case an employee might be pregnant and that they therefore might bring a claim. The danger with this is that it may further exacerbate gender inequality by putting employers off employing women of child bearing age, even more than it does now.
“With disability discrimination, an employee is protected if the employer knew, or should reasonably have known, that they were disabled. This in itself has caused problems as to in what situations you should know something when you don’t. The law should be clearer on the subject and pregnant women and women on maternity leave should be treated equally.”
Apart from women not knowing they are pregnant, Palmer adds that she has seen so many cases where employees are too worried to tell their employer that they are pregnant, particularly in the early stages or when in their probationary period.
Palmer says that however much the woman tries to hide her pregnancy, the signs are often obvious, for example:
- where a woman who happily drank a glass (or bottle) of wine gives up alcohol altogether
- unusually regular doctor’s appointments
- unexpected nausea
- the bump: I have heard stories of the employer staring at a woman’s stomach
- The woman may tell a good friend – in utmost confidence – but then the friend gossips and the news is out.
“Why don’t women tell their employer they are pregnant? Because they fear losing their job or suffering other disadvantages – and the evidence shows that they are right to fear dismissal or disadvantage because it is so common,” says Palmer. “The employee is dismissed, the employer says they had no idea of her pregnancy even though she thinks they have guessed. Guessing is generally not enough to prove knowledge and the employee is left with no protection.”
What may change for employers?
Allen says that the context of this Spanish case ‘seems alien to UK law’ and therefore it is difficult to know what this means for a UK employer.
However, he says it might conceivably lead to employers trying to ‘second guess’ whether an employee might be pregnant, ‘which is a dangerous path to tread and will in itself lead to potential discrimination’.
“The Advocate General suggests that employers in this position might be able to ‘rectify the damage’ at a later date, for example by reinstating an employee who has been dismissed. However, in the real world, for example following a complex redundancy exercise, this may not be possible or at the very least would be difficult to unpick,” says Allen.
Sharon Latham, a partner at Clarke Willmott LLP and head of its Employment Team in Bristol, says: “It is odd that employees on maternity leave are given preference in redundancy situations but not those that are pregnant – it is illogical to treat them differently.
“As to gaining protection before an employee says they are pregnant, that’s rife with problems too. Employers will be worried to take any steps in case an employee might be pregnant and that they therefore might bring a claim. The danger with this is that it may further exacerbate gender inequality by putting employers off employing women of child bearing age, even more than it does now.
“With disability discrimination. an employee is protected if the employer knew, or should reasonably have known, that they were disabled. This in itself has caused problems as to in what situations you should know something when you don’t. The law should be clearer on the subject and pregnant women and women on maternity leave should be treated equally,” says Latham.
If an employer is not aware of a pregnancy, it is difficult to see how a dismissal could be for a reason relating to that pregnancy and therefore be unlawful, says Louise Taft, employment solicitor at Freemans.
“Employers would be well advised to give clear reasons for dismissal to all workers in order to avoid any suggestion that it is related to pregnancy, childbirth or maternity,” says Taft
Approach with caution
While it is clear that the Advocate General’s opinion is non-binding, it is more often than not the case that it is followed by the European Court. Should this happen, employers could find themselves with the situation of having to deal with a redundancy situation with a super abundance of caution which in itself could be seen as discriminatory, says Laura Livingstone, Partner and Head of Employment at Gordon Dadds.
“It has been suggested by the Advocate General that pregnant women might be included in the category of those being considered in priority for alternative employment alongside those on maternity leave. Whereas those on maternity leave are obviously on maternity leave, the situation may not be nearly as simple with pregnant women,” says Livingstone.
Those who have notified their employers that they are pregnant are not an issue, but what, asks Livingstone, of those who have not notified their employers, either because they deem it too early or because they are fearful of complications?
“How is an employer supposed to know whether or not someone is pregnant without running the risk of offending its women employees potentially either because certain women may choose not to have children at all or have difficulties conceiving. It would not be appropriate for employers to ask their women employees these awkward questions but yet they would be criticised potentially if it was later found that the employee(s) were pregnant and not given priority for alternative positions.
“This could create a ridiculous situation of having women employees accusing their employers of sex discrimination for making inappropriate assumptions and male employees also claiming sex discrimination on the basis that they had been overlooked for alternative positions in favour of women employees who may or may not be pregnant.
“It is hoped that any legislation which may come in will at least require employees to notify employers of their pregnancy before an employer can be expected to treat her more favourably, but this is not what is currently being suggested. This could open up a very dangerous can of worms,” says Livingstone.
So, while it will still be possible to make a pregnant woman redundant where no suitable alternative vacancy exits, employers will need to take special care over dismissal notices, agrees Connie Cliff, PSL Principal Associate at Gowling WLG.
Currently, employees who are dismissed while pregnant or during maternity leave must be given a written statement of reasons, or face a claim for two weeks’ pay, she points out.
“According to the Advocate General, employers will need to provide more detailed notices. A notice of dismissal which limits itself to providing the general reasons for the redundancies and selection criteria will not be sufficient to fulfil the requirements of the Maternity Directive. It will also need explain why the dismissal of the pregnant worker is permissible as it was not possible to reassign her to another work post, says Cliff.