Dismissed pregnant woman loses European court case

Following a claim by a pregnant woman who was made redundant by Spain’s Bankia, the ECJ has ruled that the dismissal was lawful.


What do you need to know

Whilst the dismissal of a pregnant worker is prohibited under the EU Directive 92/85, and covers the time between conception and the end of maternity leave, there are some exceptions.

If a pregnant worker is dismissed, but the reason for the dismissal is not connected to pregnancy, then the move does not infringe upon EU law.

Under EU law, an employer must state in writing the reason for their decision to make a collective redundancy.

They must then inform the pregnant worker of the criteria used to decided who will lose their jobs.

In this case, the dismissed pregnant worker was informed that she had been given a low score in a company assessment.


Lessons learned

The case is not just a reminder of the rights of pregnant workers, but also the importance of documentation.

If you’ve got to make a group of employees redundant, then you need to be clear about the basis for which you are choosing who stays and who goes.

On top of this, you need to be clear with pregnant workers, by communicating with them personally and in writing, that the reason for their redundancy is not based upon their pregnancy. Any ambiguity could be potentially harmful in the long run, so document everything well.

For plain-English, expert advice on any of the above, you can contact Alison here.

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Another salutary tale about references

All companies who hire employees will, at some point, become involved in either giving or receiving references. It can be a bit of a minefield, and a recent case only serves to prove this point.

The recent Employment Appeal Tribunal case of Dr Pnaiser v NHS England and Coventry City Council was real an eye-opener and illustrated why caution should be taken.

What happened?

In short, the claimant, Dr Pnaiser worked for Coventry Primary Care Trust and later her team was moved to Coventry City Council. She spent a couple of years in the role, and had significant periods of absence due to disability-related surgery. As part of the restructure, she opted for redundancy and entered into a settlement agreement which included an ‘agreed reference’. The reference was a few sentences long, made no reference to sickness or absence, and was factual and positive, although very limited.
She later applied for a role at NHS England and supplied references. One referee mentioned the long-term absence and another referee, Mrs Tennant, supplied a standard reference and left a phone number.

Prof. Rashid, who was recruiting for the NHS England role, phoned Ms Tennant and, as a result of the call, withdrew the job offer.

There was some dispute during the Tribunal hearing about what the content of the call had been. It was established that the absences had been mentioned, at least in the context of making it difficult to assess Dr Pnaiser’s performance, and that Ms Tennant did not believe that Dr Pnaiser was suitable for the role.

Dr Pnaiser sued both Coventry City Council and NHS England for disability discrimination.

The Employment Appeal Tribunal decided that both Coventry City Council (through Ms Tennant) and NHS England (through Prof. Rashid) had discriminated against the claimant.

What can we learn from this?

It’s easy to see here where Ms Tennant went wrong. If an employee has left a role in difficult circumstances and a reference has been agreed, it can be dangerous to go beyond that reference. Telephone calls can catch you out, whilst they may seem very informal, they are just as critical as a written reference and can be used in the same way by the new employer.

In terms of being the recipient of a reference, you should be careful if you withdraw a job offer on the basis of any sickness absence in case this relates to a disability.

The importance of HR

Interestingly in this case the HR department of the NHS advised against the withdrawal of the job offer and refused to do it themselves. Having sound HR advice, whether it’s an in-house team or an independent HR advisor, can ensure that you don’t make any of the mistakes we’ve just discussed. For advice on this or any other HR matters, please contact Alison.

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