The regulatory treatment of pregnant employees is a particularly sensitive issue in any jurisdiction. A recent case occurred in a similar scenario and requested the intervention of the Court of Justice of the EU, which, in ruling on German legislation, shared a principle of law potentially applicable to each member State. An employee hired by a German-registered company operating a nursing home for the elderly temporarily discovered, after being dismissed, that she was already pregnant at the time of the termination. For this reason, the former employee appealed to the competent court to challenge the dismissal thus imposed on her, precisely based on her state of pregnancy. However, the invested Court reckoned referring to the Court of Justice of the European Union was necessary. More specifically, the German legislation that the Court intended to apply provides that a dismissal is considered lawful once the three-week period from its notice expires. Exceptionally, the national regulations on the matter also prescribe that an appeal raised after such a period remains admissible if it is made within two weeks following the cessation of the reason why it was impeded to the employee to move forward with the action in compliance with the ordinary three-week limit. However, given that she was not aware of her pregnancy condition and that she had a shorter period to obtain proper support, the employee did not file for any of the remedies indicated above, thus challenging the dismissal long after either of the mentioned deadlines. In general, the referring Court expressed its doubts about the conformity of these provisions with EU law, especially in light of the CJEU's ruling (October 29, 2009, Pontin judgment) and Directive No. 92/85, pursuant to which the remedies available to a pregnant woman should be regulated by legislation capable of ascertaining the respect of the principle of effectiveness. When asked about the issue, the CJEU assessed (through judgement dated June 27th, in C-284/23) that, according to German law, a pregnant employee who is aware of her pregnancy at the time of her dismissal is granted three weeks before challenging the dismissal. Instead, on the other hand, a worker who does not know her state of pregnancy before the expiration of that deadline only has two weeks to move forward with a judicial action (i.e., due to a reason not attributable to her). As the Court stated, this “implies a considerable reduction in the time limit to obtain effective advice and, where appropriate, to draft and submit not only that request for leave to bring an action out of time, but also to bring the action itself […] that is to say a shorter period than that which would have applied if she had been aware of her pregnancy at the time of her dismissal. Thus, that two-week period may have the effect of making it very difficult for that worker to obtain proper advice and, where appropriate, to draw up and submit the request for leave to bring an action and to bring the action itself.me time as the request”. Therefore, following the reasons specifically clarified through the entire judgement, the EUCJ states that the provisions set by Directive no. 92/85 must be interpreted as precluding national legislations under which a pregnant worker, unaware of her pregnancy state until after the expiry of the time limit prescribed for bringing an action against her dismissal, is only left, to the purposes of safeguarding her position, to submit a request for a late appeal within a shorter period than the ordinary one, thus rendering the implementation of the rights deriving from the mentioned Directive excessively difficult. Although in the Italian legal system, there is no discipline specifically contemplating different time limits for challenging a dismissal that the employee considers unlawful, the principle of law potentially of interest also for Italian legislation is inherent in the idea that national disciplines, which, for a reason that does not depend on the employee's conduct, make it difficult for the latter to exploit the rights recognised by EU law (a circumstance that would violate the principle of effectiveness of the latter) cannot be considered compliant with European provisions.
2024 - Morri Rossetti
