In the recent case of Porras Guisado v Bankia SA and others (Case C-103/16), the European Court of Justice (ECJ) has ruled that pregnant workers are not entitled to special treatment in a collective redundancy exercise.
However, it is worth remembering that the UK has its own legislation about the treatment of pregnant employees during a redundancy process, which must be followed.
The Relevant Law The Pregnant Workers Directive (the Directive) affords protection against dismissal to pregnant workers and those on maternity leave during a protected period.
The protected period starts at the beginning of pregnancy and ends when the employee returns to work.
Although the Directive provides for the protected period "from the beginning of pregnancy", in the UK it is generally accepted that a woman will not benefit from the statutory protection on account of her pregnancy until her employer is made aware that she is pregnant.
The Directive provides that Member States should take all necessary steps to safeguard pregnant workers from dismissal during the protected period. If a pregnant worker is dismissed, it must be in exceptional cases only and the employer must cite the reason for the dismissal in writing.
It is automatically unfair to dismiss a woman or select her for redundancy when the principal reason for doing so is connected to her pregnancy or statutory maternity leave.
In Porras Guisado v Bankia SA, the court held that collective redundancy can be considered an exceptional case for dismissal.
Therefore national legislation which allows an employer to dismiss a pregnant woman in the ordinary course of a collective redundancy exercise, for reasons unconnected to pregnancy, is permitted by the Directive.
The court ruled that under EU law there is no requirement to give priority treatment to pregnant workers in terms of redeployment.
In the UK however, under regulation 10 of the Maternity and Parental Leave etc Regulations 1999, priority treatment must be given to women who are at risk of redundancy whilst on maternity leave.
Female employees on maternity leave during a redundancy process are entitled to be given first refusal on suitable alternative vacancies.
If the employer does not comply with this requirement, the employee will have a claim for automatically unfair dismissal under section 99 of the Employment Rights Act 1996.
Where an employer is seeking to make large scale redundancies of 20 or more employees within a period of 90 days or less, they can include those employees who are pregnant in the collective redundancy exercise - providing the reasons for inclusion are unconnected with the worker's pregnancy.
Although no priority is given to pregnant workers in the course of the collective redundancy exercise, under UK law women on maternity leave are entitled to be given first refusal on suitable alternative vacancies.
This is a rare example of lawful positive discrimination.
We advise that employers take particular care when following redundancy procedures with staff on maternity leave, and consider all potential alternatives - taking care to ensure that the employee on maternity leave has priority.
It should be noted that this rule will also apply to a vacancy with an associated employer.
For more information please contact Kathy Halliday in our Employment Law team on 0121 227 3711.