THE PREGNANT EMPLOYEE, FIXED TERM CONTRACTS AND EU DIRECTIVES

Given the anecdotal evidence that pregnant employees are being targeted for redundancies let us look again at the underlining protection afforded to them under EU Directives and caselaw.

Article 2(3) of the Equal Treatment Directive (Directive 76/207) provided simply for a derogation from the principle of equal treatment, stating that:-

“(Directive 76/207) shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity”.

This derogation has been interpreted very restrictively by the European Court of Justice (ECJ).

Article 2(3) of Directive 76/207 was replaced by Article 2(7) as a result of amendments introduced by Directive 2002/73. This amended provision of the Equal Treatment Directive provides as follows:-

A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.

Less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC shall constitute discrimination within the meaning of this Directive.”

With effect from the 15th August, 2009 Directive 2006/54 (known as the Recast Directive) repealed, inter alia, Directives 75/117 (Equal Pay), 76/207 (Equal Treatment) and 97/80 (Burden of Proof). It does not affect the Pregnancy and Maternity Directive (Directive 92/85) which continues in force. The purpose of the Recast Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation i.e. access to employment, including promotion, vocational training, working conditions including pay and occupational social security schemes.

Article 2(2) of the Recast Directive states that discrimination includes any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85. Article 15 addresses the right of female workers to return to their job or an equivalent post after maternity leave. The Recast Directive reproduces the terms of the Burden of Proof Directive (97/80), which it repealed. The onus remains on a respondent to prove that there has been no breach of the principle of equal treatment. Article 28 also reproduces the terms of the derogation referred to above.

The purpose of Directive 92/85 is to implement measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding. This is a minimum standards Directive and Member States can adopt rules providing for more favourable protection of pregnant workers.

What is a Pregnant Worker

Article 2(a) of Directive 92/85 provides that a pregnant worker means a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice. The definition appears to suggest that a worker cannot benefit from the protection afforded by Directive 92/85 unless and until the employer has been informed by the pregnant employee herself of the pregnancy. Questions have arisen as to whether in a situation where an employer is informed by a third party of the worker’s pregnancy or were it to be established that he or she had realised the employee was pregnant, would the employee qualify as a pregnant worker within the meaning of this Directive? The ECJ has yet to deal with a case in which this was the central issue. See also reference to the Mayr and McGloin cases below.

The Pregnancy and Maternity Directive 92/85 provides for substantive rights and obligations for pregnant workers. For the purpose of this article however I intend concentrating on the provision of the Directive which prohibits the dismissal of pregnant workers and those on maternity leave during the period from the beginning of their pregnancy to the end of the maternity leave.

Article 10 of Directive 92/85 states:-

“In order to guarantee workers [who are pregnant, who have recently given birth or who are breastfeeding], within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:-

2. If a worker within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;”

It is useful to note in this context that the Charter of Fundamental Rights of the European Union, which is now attached to the TFEU as a consequence of the Lisbon Treaty, has the same legal value as all preceding and current Treaties. The Charter provides certain assurances for pregnant employees. In particular Article 33(2) provides:-

“to reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child”.

The explanatory notes which accompany the Charter clarify that maternity within the meaning of Article 33(2) covers the period from conception to weaning. This explanation would appear to suggest that the Charter goes well beyond the terms of the Pregnancy and Maternity Directive and indeed ECJ caselaw. In addition it refers to “paid maternity leave”. Does this mean that the employee should be paid all her salary/wage and not just a proportion? It will be interesting to see in time how the Charter will impact on the rights of pregnant employees. Will a pregnant employee be able to avail of remedies under the Charter in addition to the Pregnancy and Maternity Directive? Which will take precedent i.e. the Directive or the Charter?

Pregnant Fixed Term Employees

It is well established that the dismissal or refusal to employ a pregnant worker on account of pregnancy constitutes direct discrimination on grounds of sex as only female workers can be dismissed from work or refused employment on this basis⁽¹⁾. Such discrimination cannot be justified with reference to the financial loss which may be experienced by the employer, by the fact that the employee will not be able, albeit temporarily, due to pregnancy and/or maternity leave, to perform the tasks for which she was employed or by the fact that the employee did not inform the employer of her pregnancy when she was offered the position. It is also well established that extraordinary circumstances, which are not connected to the pregnancy of the employee, can justify the dismissal of a pregnant employee. In Winston’s Jewellers V Mason⁽²⁾ the pregnant employee was dismissed without discrimination occurring where the small business was in extreme financial difficulty and the claimant was made redundant on the well established principle of last in – first out or LIFO.

But what if the pregnant employee is on a fixed term contract? Is the pregnant employee still protected? This question was resolved in the Tele Denmark case⁽³⁾ in the affirmative. The Claimant in that case was recruited for a period of 6 months but her employer was not informed of her pregnancy. The ECJ stated:-

“Since the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of the economic loss incurred by the employer as a result of her absence because of pregnancy, whether the contract of employment was concluded for a fixed or an indefinite period has no bearing on the discriminatory character of the dismissal. In either case the employee’s inability to perform her contract of employment is due to pregnancy”.

No distinction is made by Directives 76/207 and 92/85 as regards the scope of the principle of equal treatment for men and women according to the duration of the employment relationship. Thus should employees engaged on fixed term contracts be treated the same as employees who are permanent, temporary or engaged under contacts of indefinite duration? The ECJ said that if the Union legislative wished to exclude fixed term contracts from the scope of the Directives it would have done so expressly. It went on to state that Article 5(1) of the Directive 76/207, which prohibits discrimination as regards dismissal, and Article 10 of Directive 92/85 are to be interpreted as precluding a worker from being dismissed on the ground of pregnancy where she was recruited for a fixed period, where she failed to inform the employer that she was pregnant even though she was aware of this when the contract of employment was entered into, and where, because of her pregnancy, she was unable to work during a substantial part of the term of that contract.

Non Renewal of Fixed Term Contracts and the Pregnant Employee

In the Irish case of McGloin V The Legal Aid Board⁽⁴⁾ the Claimant became ill with a pregnancy related illness and had to be hospitalised from the 9th February, 2006 to the 14th March, 2006. The Claimant had worked for the Respondent on a series of fixed term contracts as a clerical officer. The Claimant’s husband notified her manager of the pregnancy on the 23rd March, 2006. On the 31st March, 2006 the Claimant received a letter from the Respondent dated 27th March, 2006 that her contract would not be renewed. The reason stated in the letter was that an officer, who was on career break at the time, would be returning to resume her duties. The Claimant contended that a temporary replacement was employed by the Respondent until the officer concerned resumed her duties in mid May 2006. The letter from the Respondent also referred to the number of sick days taken by the Claimant. The Claimant contended that the non-renewal of her fixed term contract constituted discriminatory dismissal on the grounds of gender and was due to her pregnancy.

In its defence the Respondent contended that it was not apprised of the nature of the Claimant’s illness or that it was related to her being pregnant. The Respondent also contended that since the Claimant had been employed to cover for this permanent employee, it was not possible to offer the Claimant another contract of employment. It also contended that the decision not to renew the Claimant’s contract of employment was made before the Respondent was appraised of her pregnancy, and that therefore the issue of discrimination on the ground of gender did not arise. The Equality Officer noted that the Claimant’s sick leave was a decisive factor in the decision not to renew her contract, even though the Respondent had been apprised that most of the sick leave was pregnancy related. There had been a gap of 6 weeks between the permanent staff member coming back and the Claimant’s dismissal. The Equality Officer was satisfied that the Claimant had raised a prima facie case that non-renewal of her fixed term contract of employment was directly related to her pregnancy and that the employer failed to rebut the presumption. The Respondent was unable to adduce evidence in the form of minutes or similar documentation to support its contention that the decision not to renew the fixed term contract was made on the 13th March before the Respondent was apprised of the Claimant’s pregnancy and therefore unrelated to it. In this case the Equality Officer was persuaded that the non-renewal of the fixed term contract was related to the Claimant’s pregnancy by reason of the Respondent’s letter of the 27th March which specifically raised the sick leave and was issued 4 days following the communication by the Claimant’s husband of her pregnancy. The Equality Tribunal relied on the Melgar case⁽⁵⁾ and the Claimant was awarded €15,000.00.

In Melgar the ECJ held that “where non renewal of a fixed term contract is motivated by the worker’s state of pregnancy, it constitutes direct discrimination on grounds of sex.” The Claimant here had been employed on a series of roll-over fixed term contracts as a home help for the elderly. When the claimant informed her employer that she was pregnant her fixed term contract was not renewed.

A pregnant employee under a fixed term contract has the same rights as an ordinary employee and will be protected under the provisions of Directive 92/85. However a pregnant employee under a fixed term contract has no right to return to work on conclusion of her fixed term contract. The natural expiration of the fixed term contract is not extended because the fixed term employee was pregnant or on maternity leave.

The non-renewal of a fixed term contract is not in itself capable of constituting less favourable treatment than a permanent employee although the renewal may amount to less favourable treatment. In Prasad V Health Service Executive⁽⁶⁾ the Labour Court held that, except in the circumstances of Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 (2003 Act), a fixed term employee does not have an automatic right to have his or her fixed term contract renewed on its expiry. Fixed term contracts are lawful and it is only when there is a breach of the 2003 Act, or they are used as an instrument of abuse, or to circumvent the protection afforded under the Unfair Dismissals legislation or where the non renewal is related to discriminatory grounds that the termination of the employment can be successfully challenged.

The non-renewal of a fixed term contract due to maternity/parental leave issues will fall to be addressed under the Recast Directive. It is clear from the wording of the Equal Treatment and Recast Directives that they both interact with Directive 92/85. Unfavourable treatment of a female employee on grounds of pregnancy or maternity within the meaning of Directive 92/85 constitutes direct discrimination within the meaning of the Recast Directive. We can expect the ECJ in response to references to refer to the provisions of the Recast and Pregnancy and Maternity Directives going forward. For example in the Mayr case⁽⁷⁾ the ECJ was asked a question on Directive 92/85 but found the answer in the Equal Treatment Directive.

In Mayr the Claimant was undergoing IVF treatment. In the course of the IVF treatment a follicular puncture was carried out on the Claimant, extracting the necessary ova. She was given a sick certificate for 5 days by her doctor. In the midst of the 5 days sick leave and after hormone treatment lasting for about one and half months, the Claimant was informed by telephone by her employer that she was dismissed at the end of the month by reason of redundancy. By letter of the same date, the Claimant informed her employer that, in the course of the IVF treatment, the transfer of the fertilised ova into her uterus was planned for a few days later. It was common ground in the case that, at the date the Claimant was given notice of her dismissal, the ova taken from her had already been fertilised with her partner’s sperm cells and, therefore, in vitro fertilised ova already existed on that date. Whilst they existed they had not been transferred to her uterus. The Claimant referred the case to the ECJ as to whether she had been unfairly dismissed by reason of pregnancy.

The ECJ said that the Claimant was not entitled to benefit from protection from dismissal provided by Article 10 of Directive 92/85. The Court stated:-

“…….. even allowing, in regard to in vitro fertilisation, that the date (when protection from dismissal commences) is that of the transfer of the fertilised ova into the woman’s uterus, it cannot be accepted, for reasons connected with the principle of legal certainty, that the protection established by Article 10 of Directive 92/85 may be extended to a worker when, on the date she was given notice of her dismissal, the in vitro fertilised ova had not yet been transferred into her uterus”.

If the ECJ had decided otherwise and widened the protection of female employees to the entire duration of the IVF treatment (leaving aside other considerations relating to IVF) then there could be no legal certainty. What could an employer do if the fertilised ova remained untransferred and frozen for years? It was successfully argued that it was only at the moment of the transfer that the protection for a pregnant worker against the termination of employment begins. However, the ECJ then turned to the Equal Treatment Directive and stated (inter alia):-

in vitro

51. To allow an employer to dismiss a female worker in circumstances such as those in the main proceedings would, moreover, be contrary to the objective of protection which Article 2(3) of Directive 76/2007 pursues, in so far as, admittedly, the dismissal is essentially based on the fact of the in vitro fertilisation treatment and, in particular, on the specific procedures, outlined in the previous paragraph, which such treatment involves”.

The ECJ concluded that the circumstances of this case where the female worker was at an advanced stage of IVF could come under the Equal Treatment Directive and stated that it was up to the national court to determine and establish if the dismissal was essentially based on the fact that the employee was undergoing IVF.

New Proposals

A proposal for the amendment of Directive 92/85 has been presented to the European Parliament. The proposal contemplates the extension of paid maternity leave to 18 weeks (instead of the present 14 weeks) and employers would also have to justify in writing, the dismissal of a worker within 6 months of the end of her maternity leave. The proposed Directive would explicitly include a prohibition to make any preparations for a possible dismissal not due to exceptional circumstances during the maternity leave. Further the payment during maternity leave would be equivalent to the full monthly salary received prior to maternity leave or subject to a ceiling equal to sick pay. This is interesting in light of Article 33(2) of the Charter referred to above. Member States could stipulate a ceiling but not below any sick pay allowance. Further, during or after maternity leave an employee would have a right to ask her employer to adapt her working patterns and hours to the new family situation and the employer would be obliged to consider such a request. However, the employer would have no obligation to accept or follow up on the request. Understandably this proposal has generated considerable debate with issues relating to full pay, duration of maternity leave, and the protection of women on return to work, proving to be major obstacles. The current recession will make it more difficult to secure agreement in particular due to arguments over whether such reforms are affordable.

1. Case C–177-88 Dekker [1990] ECR1 – 3941.

2. Winston’s Jewellers V Mason – No. EED032

3. Tele Denmark Case - C-109-00[2001] ECR1 - 6993

4. McGloin V The Legal Aid Board – DEC-E-2009-042

5. Maria Luisa Jimenez Melgar V Ayuntamiento de Los Barrios [C-438-99]

6. Prasad V Health Service Executive – FTD 062 [7 April 2006]

7. Case C-506-06 Mayr [2008] ECR1-1017

For further information please contact Carol Fawsitt, Partner and Head of Employment, Hayes solicitors, Lavery House, Earlsfort Terrace, Dublin 2.

cfawsitt@hayes-solicitors.ie

Tel +353 1 6624747
Fax +353 1 6612163
www.hayes-solicitors.ie

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THE PREGNANT EMPLOYEE, FIXED TERM CONTRACTS AND EU DIRECTIVES