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Freshfields Risk & Compliance

| 4 minutes read

ECJ rules pregnant women’s contracts of employment may be terminated in case of collective redundancies

                            Porras Guisado v Bankia S.A C-103/16

On 22 February 2018 the European Court of Justice (ECJ) published its ruling in relation to the Porras Guisado v Bankia S.A case, clarifying the regulation regarding pregnant women’s protection against dismissal and, in particular, whether Spanish regulation was protective enough.


On April 2006 the plaintiff (Mrs. Jessica Porras) was hired by the Spanish bank Bankia (the Company). As of January 2013 Bankia initiated a collective redundancy process.

During the consultation process the employees representatives reached an agreement with the Company’s representatives which established certain selection criteria to include the affected employees in the collective redundancy, i.e. those terminated under a compensated redundancy scheme and those persons who were affected by geographic mobility and redeployment procedures.

Further to such criteria two situations where defined as employees with priority to be retained: workers with a degree of disability higher than 33 per cent and where two persons were married or cohabiting as a couple, only one of the two may be affected.

In November 2013 the Company made the employee, who by then was pregnant, redundant, providing express reasons for being selected as an affected employee.

The current regulation

Directive 92/85 provides for a restrictive regulation in relation to pregnant employees dismissal. This regulation, on the one hand, prohibits the dismissal of pregnant women and, on the other hand, encourages Member States to establish regulations that improve the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding.

Spanish law also provides for a regulation that protects pregnant employees in case of dismissal. The question here was mainly aimed to clarify whether this regulation was protective enough in the sense provided by the European legislation in this matter or not.

The Judgment

The Cataluña Superior Court of Justice referred the following questions to the Court for a preliminary ruling:

1. Article 10(1) of Directive [92/85] establishes as an exception to the prohibition to make pregnant employees redundant those “exceptional cases not connected with their condition which are permitted under national legislation and/or practice …”. Also Article 1(1)(a) of Directive 98/59 establishes as reasons to implement a collective redundancy “… one or more reasons not related to the individual workers concerned …”.

The question referred by the Superior Court of Justice was whether the exception to the prohibition to dismiss pregnant employees could be interpreted as corresponding to those reasons not related to the individual workers or whether it should be construed in a more restrictive way.

In this regard the ECJ understands that a decision to make an pregnant employee redundant during the pregnancy period and until the end of the maternity leave for reasons unconnected with the worker’s pregnancy would not be contrary to Article 10 of Directive 92/85, provided, however, that the employer gives substantiated grounds for dismissal in writing and that the dismissal of the person concerned is permitted under the relevant national legislation and/or practice.

Thus, the ECJ understands that those reasons not related to the individual under which a collective redundancy may be implemented, shall indeed be regarded within those exceptional cases where a pregnant employee may be dismissed under Article 10(1) of Directive [92/85]. Then, it rules that it shall be interpreted that they both correspond.

2. In the second question the referring court asked whether national legislation allowing an employer to dismiss a pregnant worker in the context of a collective redundancy without giving her any grounds other than those justifying the collective redundancy and without informing her of exceptional circumstances was against the European regulation established in Directive 92/85.

The ECJ highlights that the European regulation does not provide for a specific or enhanced obligation to provide exceptional reasons for a dismissal in case of a pregnant employee. Although it does set the obligation to base the dismissal on objective grounds which do not have nothing to do with the pregnancy situation.

Thus, the answer to this question is that Article 10(2) of Directive 92/85 must be interpreted as not precluding national legislation which allows an employer to dismiss a pregnant worker in the context of a collective redundancy without giving her any grounds other than those justifying the collective redundancy, provided that the objective criteria chosen to identify the workers to be made redundant are cited.

3. The referring court also asked whether national legislation in order to be compliant with Directive 92/85 should provide for a prohibition of dismissal of pregnant employees.

The ECJ finds that the Directive is intended to provide a double protection to pregnant employees: (i) a preventative measure which prohibits dismissal; and (ii) a compensation from the consequences of the dismissal.

The court clarifies that both protections shall be established in national legislation in order to be compliant.

Thus, coming back to the Spanish case, in Spain there is no such absolute prohibition against dismissal of pregnant women but only a “compensational protection” that provides that in case of dismissal, the dismissal shall be null and void.

The ECJ ruled that that Article 10(1) of Directive 92/85 must be interpreted as precluding national legislation which does not prohibit, in principle, the dismissal of a worker who is pregnant, has recently given birth or is breastfeeding, as a preventative measure, but which provides, by way of reparation, only for such a dismissal to be declared void when it is unlawful.

4. Final two questions were dealt with as one:  does national legislation have to provide for an obligation to afford pregnant employees a priority status in relation to being either retained or reassigned to another post in order to comply with the Directive 92/85?

The ECJ clarifies that European regulation does not establish any obligation in this regard although it does not prevent national legislation from establishing a more protective regulation which could indeed include this kind of measures in order to guarantee a higher protection for pregnant workers, workers who have recently given birth and workers who are breastfeeding.

With this resolution the protection against dismissal regulation regarding pregnant workers, workers who have recently given birth and workers who are breastfeeding is clarified, although, generally speaking, no ground-breaking conclusions are to be extracted from it.

However, attention shall be paid to the answer that the ECJ gives to the third question, as it clearly states that Spanish legislation is not protective enough on the basis that it does not provide for an absolute prohibition against dismissal. One could then argue that the path is open to further judicial procedures where courts shall take a view on the real implications of such statement.


redundancies, fintech