Can an Employer Terminate a Pregnant Worker’s Employment Contract as Part of the Redundant Workers Termination Plan?
Collective terminations are regulated in the Employment Relationships act (Official Gazette of the Republic of Slovenia, no. 21/13 with amendments and supplements, ZDR-1) in Articles 98 to 102, namely as termination to a large number of workers due to business reasons (hereinafter “collective terminations”). In its judgment C-103/16, the CJEU gave an explanation regarding the prohibition of terminating employment contracts of pregnant workers referred to in the Council Directive 92/85 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 (“Directive”), within the meaning of Directive 8/59 on the approximation of the laws of the Member States relating to collective redundancies.
The CJEU established that the Directive prohibits employers from terminating the employment contracts of workers from the beginning of pregnancy up until the end of their maternity leave, with the exception in specific cases, which are provided in national legislation and/or which are in accordance with practices not linked to pregnancies. The CJEU further determined that the Directive includes merely minimal requirements, not binding for the Member states– the latter may also prescribe higher or lower requirements for the protection of pregnant workers.
In this specific case, Spain allowed the termination of employment contracts of pregnant workers as part of collective terminations. Consequently, the CJEU ruled that national legislation, which allows the termination of employment contracts of pregnant workers as part of collective terminations, is not contrary to the Directive.
On the contrary, Slovenia has prescribed significantly higher requirements for the protection of pregnant workers. The Employment Relationships Act clearly states that a pregnant worker’s employment contract may not be terminated and that this prohibition also applies to collective terminations. There are two exceptions included in Article 115, whereby a pregnant worker’s employment contract may be terminated, (i) if reasons for extraordinary termination are given, or (ii) because of the initiation of the procedure for the termination of the employer. However, the two exceptions mentioned above must be interpreted in an extremely restrictive manner. Along with these requirements, the law requires prior consent of the labour inspector in the case of termination as a result of the above mentioned reasons.
To conclude, the Employment Relationship Act does not provide any exceptions with regards to the termination of a pregnant worker’s employment contract as part of collective terminations; instead, a general prohibition applies in these cases. Therefore, the CJEU judgment does not entail any changes to the Slovene regulation of this area. There would be a difference only if the Employment Relationships Act would prescribe that the employment contracts of pregnant workers may be terminated in case of collective terminations.
