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EC Court rules on rights for dismissed pregnant workers

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The ruling, made by the Court in Luxembourg on 29 October, says thatthe protection must be afforded  where the only remedy available under national legislation to a worker dismissed during pregnancy does not provide adequate time-limits within which to bring proceedings, that legislation introduces less favourable treatment linked to pregnancy and constitutes discrimination against female employees.

The Luxembourg Code du travail (Labour  Code),  which transposes the Pregnant Workers Directive (1), prohibits the dismissal of an employee where she has been medically certified as being
pregnant or within twelve weeks  of her giving birth. It makes legal action by an employee
dismissed during pregnancy, who wishes to bring an action for nullity of the dismissal and  for
reinstatement within the undertaking concerned, subject to a time-limit of 15 days from the date on
which her contract is terminated.
Ms Virginie Pontin worked for the Luxembourg company T-Comalux from November 2005. On 25
January 2007 she was notified of her dismissal with immediate effect ‘on grounds of serious
misconduct’ consisting  of ‘unauthorised absence  for more  than three  days’. The  next day  Ms
Pontin informed T-Comalux that she was pregnant and that her dismissal was null and void by
virtue of the legal protection enjoyed by pregnant workers. As she had not received a reply from
the company and considered that she was the victim of wrongful dismissal, on 18 April 2007 she
referred the matter to the Tribunal du Travail d’Esch-sur-Alzette (Employment Tribunal of Esch-sur-
Alzette, Luxembourg) seeking a declaration that her dismissal was null and void. 
The Tribunal du Travail asks the Court of Justice in essence whether Community  law precludes
national legislation which, on the one hand, makes legal action brought by a pregnant employee
who has been dismissed during her pregnancy subject to short time-limits likely to deny her  the
opportunity to take legal proceedings to safeguard her rights and, on the other hand, denies her
the possibility of bringing an action for damages against her employer, which is available to other
employees who have been dismissed.

The Court observes that Member States are required to take such measures as are necessary to
enable persons who consider themselves wronged to  pursue their claims by judicial process in
accordance with the principle of judicial protection of an individual’s rights under Community law.
Thus, pregnant workers or those who have recently given birth or are breastfeeding must be
protected from the consequences of dismissal which would be unlawful. National measures must
be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect
with regard to the employer and must in any event be commensurate with the injury suffered. It is
for the national court, which alone has direct knowledge of the procedural rules governing actions
in the field of domestic law, to determine whether those principles are complied with.

The 15-day time-limit
Although the Court recognised that Member  States may lay down reasonable  time-limits for
bringing proceedings,  such time-limits must not render impossible  or excessively difficult  the
exercise of rights conferred by Community law. In that regard, the procedural rules relating to an
action for nullity and reinstatement of a dismissed employee appear to give rise to problems likely
to make exercise of the rights that pregnant  women derive from  Community law excessively
The Court considers that the 15-day time-limit is particularly short for obtaining proper advice and,
if appropriate, bringing an action for nullity and reinstatement within the undertaking. Furthermore,
some of the days included in that period may expire before the pregnant woman receives the letter
notifying her of the dismissal, since it would seem that period begins to run, according to the case-
law of the Luxembourg courts, from the time the letter of dismissal is posted and not from the time
it is received.   If the referring court were, after conducting the necessary legal and factual
verifications, to hold that the 15-day limitation period does not comply with the requirement
of effective judicial protection of an individual’s rights under Community law, such a time-
limit would infringe the Pregnant Workers Directive.

Exclusion of an action for damages
According to the referring court, the only remedy open to  a pregnant woman dismissed during
pregnancy is an action for nullity and reinstatement within  the undertaking, to the exclusion of all
other remedies under employment law, such as an action for damages.
Therefore, if it emerges, after verification by the referring court, that the procedural rules
relating to the only action available in the event of the dismissal of pregnant workers do not
comply with the principle of effective judicial protection of an individual’s rights under
Community law, such limitation of available remedies introduces less favourable treatment
of a woman related to pregnancy and thus constitutes discrimination within the meaning of 
the Equal Treatment Directive (2).
If that referring court were to find there had been such an infringement of the principle of equal
treatment, within the  meaning of the Equal  Treatment Directive, it would have to interpret the
domestic jurisdictional  rules in such a way  that, wherever possible, they contribute to  the
attainment of the objective of ensuring effective judicial protection of a pregnant woman’s rights
under Community law.

 Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the
safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth
individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1).

 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and
women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p.
40), as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 (OJ
2002 L 269, p. 15).

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