The European Court of Justice (the ECJ) has ruled that a pregnant woman who was dismissed in connection with mass redundancies did not have a preferential right to stay employed with the company or to be relocated under EU law. 

The protection of pregnant women under EU law stipulates that member states are obligated to take the required measures to prohibit dismissal of pregnant women except in special situations where the dismissal is not connected with the pregnant woman’s condition, but it allowed under national law or practice.

THE REASON “MASS REDUNDANCY” WAS SUFFICIENT

In EU law, mass redundancies are defined as a more specific number of dismissals made within a specific period when the dismissals are made by an employer “for one or more reasons for which the employer is not to blame”.

In the specific case, the ECJ was to decide whether a mass redundancy constituted a “special situation” justifying an exemption from the prohibition against dismissal of pregnant women.

The ECJ stated that the overall prohibition against dismissal of pregnant women does not prevent that a pregnant woman may be dismissed under national rules in connection with a mass redundancy.

In this connection, the ECJ found that the pregnant woman could be dismissed without any other reason than the reason justifying the mass redundancy provided that the objective criteria upon which the selection of the employee in question is based are communicated.

No preferential right or claim for relocation - but a requirement for preventive legislation. The ECJ also found that the consequences of dismissing a pregnant woman would imply that it is not acceptable if the pregnant woman only enjoys protection by way of compensation or reinstatement. As a precautionary measure, legislation must also prohibit dismissal of pregnant women

Further, the ECJ stated that a pregnant woman who is dismissed as part of a mass redundancy does not have a preferential right to remain employed or a right to be relocated to another position. At the same time, the ECJ noted that nothing prevents each member state from choosing to provide such protection.

PREGNANT WOMEN DO NOT HAVE ANY SPECIAL RIGHTS IN CONNECTION WITH MASS REDUNDANCIES

Even though pregnant women do not have any special rights in connection with mass redundancies according to the judgment, the employer is still subject to a reversed burden of proof in case of dismissal of pregnant women and women on maternity leave. In a situation where the choice is between several employees performing the same work, it may thus be (very) difficult for the employer to prove that the pregnancy and the maternity leave have not influenced the decision.

contacts

Marianne Lage

Partner

Julie Brøndby Ørbeck

Assistant Attorney