| EMPLOYMENT — Unfair dismissal — Pregnancy — Dismissal between in vitro fertilisation and implantation of fertilised ova — Whether dismissal of “pregnant worker” — Whether dismissal contrary to equal treatment principle — Council Directive 76/207/EEC, arts 2(1), 5(1) — Council Directive 92/85/EEC, art 10(1)
Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG (Case C-506/06): WLR (D) 63
ECJ: President Skouris, Judges Jann, Timmermans, Rosas, Bay Larsen, Silva de Lapuerta, Schiemann, Makarczyk, Kūris, Juhász, Ó Caoimh, Lindh and Bonichot JJ: 26 February 2008
An employee who was dismissed at a time between the in vitro fertilisation of her ova and the transfer of the fertilised ova to her uterus was not “pregnant” for the purposes of Directive 92/85 on the safety and health at work of pregnant workers, but her dismissal was unlawful under Directive 76/207 on equal treatment for men and women in employment matters if it was essentially based on the fact that she was undergoing in vitro fertilisation treatment.
The Grand Chamber of the Court of Justice of the European Communities so ruled on a reference for a preliminary ruling by the Oberster Gerichtshof, Austria.
Art 10(1) of Directive 92/85 provides: “Member states shall take the necessary measures to prohibit the dismissal of workers [who are pregnant, who have recently given birth or who are breastfeeding] …”
Art 2(1) of Directive 76/207 provides that “the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex”, and art 5(1) provides: “Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.”
The defendant, the claimant’s employer in Austria, gave the claimant notice of dismissal after ova taken from her had been fertilised in vitro but before the ova were due to be transferred to her uterus. The claimant’s claim against the defendant under Austrian legislation prohibiting dismissal during pregnancy was rejected by the defendant on the ground that the claimant was not pregnant at the time of the dismissal, and in the course of the claimant’s proceedings a preliminary ruling was sought on whether the scope of Directive 92/85 included persons in the claimant’s situation.
THE COURT said that although the moment when a worker became “pregnant” was to be taken as the earliest possible date, in order to comply with the objective of art 10, which was to avoid possible harmful effects of dismissal on the physical and mental state of pregnant workers, it could not be extended to a worker whose in vitro fertilised ova had not yet been transferred to her uterus, as under the laws of various member states, fertilised ova could be kept for a good many years before transfer to the uterus, which indeed might never take place, and it would be contrary to the principle of legal certainty to apply the art 10 protection in such circumstances. However, since the relevant stage of in vitro fertilisation could only be undertaken by a woman, a dismissal of the worker essentially because she was undergoing that treatment constituted discrimination on grounds of sex that was precluded by arts 2(1) and 5(1) of Directive 76/207.
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