Pregnancy, Discrimination and Effective Judicial Protection: Case C-63/08

Pregnant women must be entitled to effective judicial protection. So holds the Court of Justice in its judgment in Case C-63/08 Virginie Pontin v. T-Comalux SA. Thus, if national law lays down a time-limit for a pregnant woman dismissed from employment during pregnancy which is too short and also bars pregnant women from obtaining damages when other employees can get them, the law in question discriminates against women employees.

The story goes like this. Ms Pontin worked for T-Comalux in Luxembourg from November 2005. In January 2007 she was dismissed with immediate effect ‘on grounds of serious misconduct’ consisting of ‘unauthorised absence for more than three days’. The day following her dismissal 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. Her employers did not respond. She considered that she was the victim of wrongful dismissal and thus brought proceedings in April - more than 15 days after her notice of dismissal - before the Employment Tribunal of Esch-sur- Alzette, Luxembourg, seeking a declaration that her dismissal was null and void.

The problem was that the Luxembourg Labor Code, which transposes Council Directive 76/207/EEC (the Pregnant Workers Directive), 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.

The Employment Tribunal asked the Court of Justice whether EU law precludes national legislation which, first, 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, second, 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 of Justice answered that in principle a 15 day limitation seems to constitute discrimination against pregnant women as it seems to infringe the principles of equivalence and of effectiveness as regards judicial protection. The Court went on, however, that it is for the national referring court to determine whether there has in fact been a breach of those principles in this particular case.

The Court recalled that the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favorable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 46).

The principle of equivalence requires that the national rule at issue be applied without distinction, whether the infringement alleged is of EU law or national law, where the purpose and cause of action are similar (Case C-326/96 Levez [1998] ECR I-7835, paragraph 41). However, that principle is not to be interpreted as requiring member States to extend their most favorable rules to all actions brought in the field of employment law (see Levez, paragraph 42). The national court, which alone has direct knowledge of the procedural rules governing actions in the field of domestic law, must determine whether the procedural rules intended to ensure that the rights derived by individuals from EU law are safeguarded under domestic law comply with that principle and to consider both the purpose and the essential characteristics of allegedly similar domestic actions (Levez, paragraphs 39 and 43, and Case C‑78/98 Preston and Others [2000] ECR I‑3201, paragraph 49). For that purpose, the national court must consider whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics (Preston and Others, paragraph 57).

To decide whether procedural rules are equivalent, the national court must establish objectively, in the abstract, whether the rules at issue are similar taking into account the role played by those rules in the procedure as a whole, the conduct of that procedure and any special features of those rules (Preston and Others, paragraphs 61 to 63).

As regards the principle of effectiveness, the Court of Justice recalled that cases which raise the question whether a national procedural provision renders the exercise of an individual’s rights under the EU legal order practically impossible or excessively difficult must similarly be analyzed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national instances. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defense, the principle of legal certainty and the proper conduct of the proceedings (Case C‑426/05 Tele2 Telecommunication [2008] ECR I‑685, paragraph 55).

The Court has thus recognised that it is compatible with EU law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty, since such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU law (Case C‑255/00 Grundig Italiana [2002] ECR I‑8003, paragraph 34, and Case C‑2/06 Kempter [2008] ECR I‑411, paragraph 58 - see our post on that case here). As regards limitation periods, the Court has also held that, in respect of national legislation which comes within the scope of EU law, it is for the member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (Case C‑349/07 Sopropé [2008] ECR I-0000, paragraph 40).

Having recalled those principles, the Court of Justice examined the national legislation as interpreted by the referring court and came to the conclusion, subject to an examination of the facts of the case by the referring court, that the national legislation did indeed breach those principles.

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Denying the pregnancy or ignoring it can only make things worse for you and your baby. Denial will not take the pregnancy away; instead, you will lose the time you could have invested in prenatal care and counseling.

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It seems to me that missing three days of work without telling her boss she would be gone is the problem. Where in her pregnancy did the absence occur? Was she scheduled to be on maternity leave at the time?

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In my country it's illegall to dismiss a pregnant women.

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In my country it's illegall to dismiss a pregnant woman.

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o my why do we have to dismiss pregnant women? If that so, then most of the woman's have no job today.

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Organizations need to abide the legislation - it's not going away. In the same token it's tricky to say that you after pregnant after taking pregnancy sickness leave.

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I used to work for a company that fires pregnant women. They are keen to do so because not all women know that such law exists. That's why most families don't have enough financial support when the baby comes because of this. Women should be made aware of this to help protect their future as mothers.

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Having recalled those principles, the Court of Justice examined the national legislation as interpreted by the referring court and came to the conclusion, subject to an examination of the facts of the case by the referring court, that the national legislation did indeed breach those principles.

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Even at this high time, if someone feels the discrimination, then he should be punished legally. Everyone is human. All have red blood and similar kind of feelings to enjoy life. Then why discrimination?

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While working women routinely suffer discriminatory treatment in the workplace due to pregnancy and the inevitable maternity leave, rarely is the discrimination this blatant, and rarely are the corporate decision makers this honest in their assessment of the perceived diminished capacity of pregnant employees.This is in fact a really sad story. But what can we do to such poor minded people? Some changes are essential and we hope for it.