In the case of Jessica Porras Guisado v Bankia S.A., Fondo de Garantía Salarial and Others the European Court of Justice ruled that an organisation can make a pregnant employee redundant provided the employer relays the reasoning for redundancy in writing and that those concerned are informed of the objective criteria chosen to identify the workers to be dismissed.

The employee in question worked for the Spanish company Bankia. The company was experiencing difficulties necessitating cut backs. It opened a period of consultation with its workers’ representatives with a view to carrying out a collective redundancy and a special negotiating body determined the criteria to be applied when selecting those to be made redundant. 

Ms Porras, who was pregnant at the time, received a letter of dismissal. The letter explained the reasons for the redundancies and why it was necessary to significantly reduce the number of staff at her branch. It further explained that as a result of the assessment process carried out during the consultation period, she had obtained a score that was among the lowest in the province and was consequently being let go.

Ms Porras unsuccessfully challenged her dismissal at first instance. She therefore sought to appeal the decision to the Tribunal Superior de Justicia de Cataluña. That Court sought clarification from the Court of Justice, requesting an interpretation of the prohibition on dismissing pregnant workers, provided for in Directive 92/85 in the context of a collective redundancy procedure. 

Directive 92/85 essentially prohibits the dismissal of a pregnant worker during the period from the beginning of their pregnancy to the end of their maternity leave, save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice.

The Court ruled Directive 92/85 does not preclude national legislation which allows an employer to dismiss a pregnant worker in the context of a collective redundancy. In other words, if the reason for the dismissal is unconnected with the worker’s pregnancy and if the employer gives substantiated grounds for the dismissal in writing, it is not contrary to Directive 92/85.

Therefore, in accordance with the Directive an employer must set out in writing the reasons not related to the pregnant worker for making a collective redundancy (namely, economic or technical reasons or reasons relating to the undertaking’s organisation or production); and inform the pregnant worker of the objective criteria chosen to identify the workers to be made redundant. 

Furthermore, the Court explained that under Directive 92/85 Member States are not obliged, prior to the dismissal, to provide priority status to pregnant workers or workers who have recently given birth or who are breastfeeding. As the Directive contains only minimum requirements, Member States may wish to grant higher protection to women in such circumstances.

The dispute will now return to the national court to dispose of the case in accordance with the Court’s preliminary ruling.