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Pregnant workers – bumps ahead for employers?

A recent case has raised questions about whether a pregnant worker could qualify for protection before their employer knows they are pregnant

In the UK pregnant workers are currently protected from discrimination under the Equality Act 2010. However, a recent Spanish case has questioned whether a pregnant worker should qualify for protection before their employer even knows they are pregnant, and even extend to preferential selection for a suitable alternative role in a redundancy situation. Currently an employee on maternity leave has such a right but a pregnant employee does not.

Ms Guisado worked for a Spanish bank and was dismissed as part of a collective redundancy process. At the time she was pregnant but the bank was unaware of this. She issued proceedings in the Spanish court challenging her dismissal. When her claim was initially rejected she appealed to the High Court of Catalonia. In considering her claim the court referred a number of questions to the European Court of Justice, including whether it was possible for a worker to qualify for protection under the EU Pregnant Workers Directive ('PWD') when they have not yet told their employer they are pregnant, and whether it requires pregnant workers to be given priority for retention in collective redundancy situations.

Could this lead to new legislation in the UK?

Under the PWD, pregnant workers are currently protected from dismissal from the beginning of pregnancy to the end of maternity leave. However, the legislation defines a pregnant worker as someone who has told their employer they are pregnant. In the UK the Equality Act 2010 prohibits pregnancy and maternity discrimination during the 'protected period', which starts at the beginning of pregnancy and ends when the worker returns to work following maternity leave.

Having considered the matter, advocate general (AG) Sharpston confirmed that in her opinion the PWD should protect women from the beginning of pregnancy and not just once they have notified their employer of it. In terms of priority for retention in a redundancy context, she has made it clear that in her view the PWD does not impose an absolute obligation on employers to retain pregnant workers but rather must demonstrate that there is no plausible possibility of reassigning them to another suitable post.

While the AG’s opinion is not binding, if followed by the European Court (as is 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.

Difficult questions for employers

The AG’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. It could also lead to dispute as to what amounts to unreasonable delay and evidencing when an individual actually found out they were pregnant.

It also fails to take in to account the disruption this would cause to an employer’s business and the time it would take to reopen any dismissal proceedings. This is at odds with the approach currently taken in the UK where women don’t benefit from statutory protection until they have notified their employer of their pregnancy.

While those who have notified their employers that they are pregnant would be protected, what about those who have not notified their employers – either because they deem it too early, are in their probationary period, 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 female employees? This could lead to female 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 positions in favour of female employees who may or may not be pregnant.

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. The bottom line? Employers would be well-advised to give clear reasons for dismissal to all workers to avoid any suggestion that it is related to pregnancy, childbirth or maternity.

Sarah Scholfield is an employment solicitor at Glaisyers