Articles | Are pregnant workers protected even before an employer is notified?

Alexandra Scarfe reports on whether workers should be protected against dismissal from the moment they are pregnant.

Alexandra Scarfe

Alexandra Scarfe

It has generally been the case in the UK that a woman will not benefit from statutory protection on account of her pregnancy until her employer is aware of her pregnancy. For example, a worker has to be on maternity leave (and her employer accordingly aware of her pregnancy) before she gets priority in a redundancy situation. However, a recent opinion of the Advocate General on the scope of European law has suggested that awareness should not be required for EU protections to apply.

Ms Guisado was dismissed following a collective redundancy process when she received a low score in the assessment process. By the time Ms Guisado’s contract was terminated by reason of redundancy, she was pregnant. Ms Guisado claimed that she should have been given priority in the redundancy process as a result of her pregnancy and she should not have been dismissed. Her employer sought to defend the claim on the basis that it was not aware of her pregnancy at the time of her dismissal.

The case was referred to the Advocate General who concluded that pregnant workers should be given priority under EU law in a redundancy situation from the beginning of the pregnancy, even if they have not yet informed their employer of their condition. This was only caveated with an obligation on the pregnant worker to not unreasonably delay in notifying her employer.

Although this is only an Advocate General opinion and not a final judgement of the European Court of Justice, the decision could mean that employers need to be extra careful if they inadvertently dismiss a pregnant worker whom they should not have dismissed if they had known about the pregnancy at the time.

This could require employers to consider altering decisions some time after the dismissal. The pregnant worker may need to be reinstated or assigned to another role. This obviously could then have a knock-on effect on other employees in the organisation. We will report on the final European Court of Justice decision in due course.