Following up on Porras Guisado vs. Bankia

Cataluña Superior Court of Justice Resolution 2520/2018 26 April 2018

Further to the European Court of Justice (ECJ) ruling in Porras Guisado v Bankia S.A C-103/16, which addressed the questions referred by the Cataluña Superior Court of Justice (SCJ) regarding the protection of pregnant women against dismissal in Spain, and on which we reported last February, the SCJ has now rendered a resolution implementing the European decision.

The SCJ resolution

There are two different issues which are the subject of this case:

1. whether the company should have granted the employee a priority status or not in the course of the collective redundancy; and

2. whether the reasons alleged in the redundancy letter were sufficient or not.

On the first issue, the SCJ concluded that:

• the Spanish regulation provides for two types of protection for pregnant women: (i) an automatic protection against dismissal (55.5 b of the Workers Statute), which makes the redundancy directly void (without the need to prove that the company knew about the pregnancy) and (ii) a protection against discrimination (55.5 para.1  of the Workers Statute);
• the Pregnant Workers Directive (Directive 92/85) provides for an (additional) ex ante protection against dismissal from a health and safety perspective, on the basis that redundancies have a negative impact on the pregnant women’s physical and psychological situation and therefore their dismissal shall be prohibited;
• Directive 92/85 does not have horizontal effect. Therefore, it cannot be directly applied between individuals;
• reasons not related to the employee (such as objective reasons, as alleged in this case) shall be included under the concept “exceptional cases not inherent to the employees” established in article 10(1) of Directive 92/85;
• as established in the ECJ ruling, lack of compliance of the national law with article 10(1) of Directive 92/85 does not mean that companies shall establish a priority status in terms of reassignment or right to stay, unless agreed with employees representatives.

Therefore, the SCJ understands that, on the basis that Directive 92/85 cannot be directly applied in this case, the dismissal is correct under Spanish law and that the only remedy available would be to bring up a damages claim against the State.

As regards whether the reasons stated in the redundancy letter are sufficient or not:

• Spanish Supreme Court case law establishes that there is no legal need to state the criteria followed to select the employees affected by the collective redundancy on the basis that this would have been discussed with employees representatives during the consultation process;
• however, the SCJ understands that, pursuant to the ECJ’s interpretation, such case law cannot be applied in case of pregnant women redundancies. In those cases, there is a need to state the objective criteria chosen to identify the workers to be made redundant. In the case at hand, the letter did include those details.

On the basis of the abovementioned conclusions (i.e. there were enough objective reasons alleged and under Spanish law the employee should not be granted a priority status), the SCJ considers the dismissal fair. 

From our point of view, and as stated in our comment to the ECJ’s ruling, this resolution opens the path to a potential legislative modification providing more protection to pregnant women and bringing the national legislation closer to the European one.