Companies may include pregnant women in collective dismissals

The possibility of including pregnant women in a collective dismissal is a matter of great concern to companies. Following the implementation of Council Directive 92/85 EEC of October 19, 1992, a system of labour protection was established in favour of women in this situation.

Thus, the Court of Justice of the European Union’s February 22, 2018 decision (Case C-103/16) has overturned this system of protection.

The specific case that caused this Judgment arose in January 2013 when Bankia proceeded to begin a period of consultations with the workers’ main representatives to proceed with a collective dismissal.

In February of the same year, an agreement was reached with these representatives in that they established a set of criteria to determine the workers affected by the termination decision. These criteria were related to geographical circumstances, but also to aspects of competency, based on the evaluations that had been made of the workers. In the same way, permanence criteria for people with disabilities were also agreed upon.

One of the workers affected by this decision was pregnant at the time of the dismissal, so she decided to file a lawsuit for wrongful termination. The High Court (El Tribunal de Instancia) dismissed the claim on the grounds that the dismissal of the worker was due to reasons unrelated to her condition. The worker then appealed to the Catalonian Superior Court of Justice (El Tribunal Superior de Justicia de Cataluña). The latter body referred the issue to the European Court of Justice, raising the following questions:

• If it should be interpreted that Article 10, point 1, of Directive 92/85 precludes national legislation allowing the dismissal of a pregnant worker in the context of collective dismissal (pregnancy being understood as the period from the beginning until the end of maternity leave).
• If it should be interpreted that Article 10, point 2, of Directive 92/85 precludes national legislation that allows the employer to proceed with this type of dismissal without providing the workers with more reasons than those that justify the collective dismissal.
• If it should be interpreted that Article 10, point 1, of Directive 92/85 precludes national legislation which does not prevent the dismissal of a pregnant worker as a preventive measure, and establishes only a system of reparation such as the annulment of dismissal.
• If it should be interpreted that Article 10, point 1, of Directive 92/85 precludes national regulation that does not establish a priority of permanence in the company, nor a priority of relocation to another job.

Regarding the first and second questions, the Court replied that the Directive does not in fact preclude the possibility of dismissing a pregnant worker. This is the case provided that the worker is informed of the reasons that led to the dismissal and of those that have motivated the worker´s appointment as affected by the collective dismissal.

With respect to the third question, the Court rules that the Directive precludes regulations that do not establish a system of preventative protection and that reparations are provided only in the case of an annulment of dismissal.

Regarding the fourth question, the Court holds that the Directive does not require that priority be given to pregnant women for permanence or relocation. This notwithstanding, each Member State may introduce new protection systems into legislation.

It should be concluded that, in Spain, the inclusion of pregnant women in the framework of a collective dismissal is a possibility that the law protects. This is always the case, provided that the worker is informed of the reasons that led to her dismissal and the determinants for her designation as affected by it.

Alejandra Sanz

For further information regarding collective dismissals in Spain,