Does the Advocate General’s Opinion give you (pregnant) pause for thought?

Pregnant workers have four main legal rights:

  • paid time off for antenatal care
  • maternity leave
  • maternity pay or maternity allowance
  • protection against unfair treatment, discrimination and dismissal during the protected period.

In Porras Guisado v Bankia SA and others (Case C-102/16) a case currently before the European Court of Justice, Advocate General Sharpston has given her view that pregnant workers should be protected against unfair treatment, discrimination and dismissal even before they have notified their employer of their pregnancy.

A “pregnant worker” is defined by the Pregnant Workers Directive as a worker who has informed her employer of her pregnancy in accordance with national legislation and/or national practice. In the UK, it is generally accepted that a woman will not benefit from the statutory protection on account of her pregnancy from unfair treatment, discrimination or dismissal until her employer is made aware that she is pregnant.  However, the Equality Act 2010 affords protection to workers during the “protected period” which starts at the beginning of a protected worker’s pregnancy and ends at the end of her additional maternity leave period or (if earlier) when she returns to work after the pregnancy.

In the Advocate General’s opinion, this tension should be resolved in favour of pregnancy workers despite acknowledging that an employer may unwittingly dismiss a pregnant worker whom it ought not to have dismissed. She has urged the ECJ to clarify the issue in its judgement.

The Advocate General’s opinion does not give employers the green light to ask women if they are, or intend to become, pregnant (that will cause trouble of a different kind!). At the start of her pregnancy, a woman may not even know herself that she is pregnant. However, until we have the judgement of the ECJ employers can re-visit both their workplace risk assessments (the Management of Health and Safety at Work Regulations require employers to identify risks “women of childbearing age”) and policies and procedures to check whether they could be placing pregnant women at a disadvantage and make the necessary changes to minimise any discriminatory impact.

 

Donna Reynolds is Accredited by the Law Society of Scotland as a Specialist in Employment Law, advising SMEs on employment law and HR issues in Fife, Edinburgh and across Scotland.