The National law allowing the dismissal of the pregnant employee in the context of a collective redundancy does not violate EU law Through Judgment issued yesterday, February 22th, 2018 (c-103/16), the third Chamber of the European Court of Justice ruled that the Council Directive 92/85/EEC on safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding “must be interpreted as not precluding national legislation which permits the dismissal of a pregnant worker because of a collective redundancy”. The Case The case arose out in Spain, following a collective dismissal procedure terminated with an agreement with the workers’ representative and the dismissal of the redundant employees, including a pregnant woman who challenged the dismissal before the Spanish Tribunal. In second instance, the Tribunal Superior de Justicia de Cataluña suspended the lawsuit, asking to the European Court of Justice to clarify the interpretation of the ban on dismissing pregnant employees in the context of a collective dismissal procedure. In particular, article 10 (1) of the abovementioned Directive on Maternity employment protections prohibits the dismissal of pregnant employees (and employees who have recently given birth or are breastfeeding) except for “exceptional cases not connected with their condition”. The Spanish Judges asked the European Court whether or not such exceptional cases include the collective dismissals, defined by the related Council Directive (98/59/EC) as “dismissals effected by an employer for one or more reasons not related to the individual workers concerned”. On September 14th, 2017, the Advocate General at the European Court, responsible for presenting a legal opinion on the case, pointed out that not every collective redundancy shall be considered as an exceptional case in the sense of the Directive on Maternity employment protections. The Decision of the European Court of Justice Through the abovementioned Judgment, the European Court ruled that the Directive on Maternity employment protections shall be construed as: not precluding national legislation which permits the dismissal of a pregnant worker because of a collective redundancy; not precluding national legislation which allows an employer to dismiss a pregnant worker in the context of a collective redundancy without giving any grounds other than those justifying the collective dismissal, provided that the objective criteria chosen to identify the workers to be made redundant are cited; 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 that dismissal to be declared void when it is unlawful. Italian perspective As well known, in Italy it is not possible to dismiss a pregnant employee (until the first year of the child) in the context of a collective redundancies, unless the collective procedure has been launched to close the entire business. The Italian legislator has provided further maternity employment protections compared with those provided in Spain and, as we have seen above, permitted by EU law. However, all the above has no effects on the Italian legislation on maternity protections at work, indeed the European Court has expressly stated that the Directive on Maternity employment protections shall be construed as not excluding the right of Member States to provide for a higher level of protections.
