This case was referred to the European Court of Justice by the Austrian courts. The ECJ was asked to rule on the meaning of a ‘pregnant worker’ for the purpose of the EU Pregnant Workers Directive. This directive protects pregnant workers from dismissal.
Ms Mayr was employed by Backerei und Konditorei Gergard Flockner OHG. In March 2005, Mayr underwent fertility treatment in the form of in vitro fertilisation (IVF). On 8 March 2005, Mayr’s eggs were fertilised. On 10 March 2005, Mayr was told that she was dismissed with effect from 26 March 2005.
Mayr lodged a claim against the company arguing that her dismissal had no legal effect. She claimed that once the fertilisation had taken place on 8 March 2005, she was entitled to the protection against dismissal provided for in the Pregnant Workers Directive, which had been implemented in Austrian law under the Law on Maternity Protection.
Initially, the Austrian court upheld Mayr’s claim. It found that protection from dismissal begins with the fertilisation of the egg. However, this decision was overturned by a higher court, which found that pregnancy only begins once the egg has been transferred into a woman’s body.
The case was then appealed further. At this stage, the court decided to refer the matter to the ECJ to ask it to determine when a worker becomes a ‘pregnant worker’ within the meaning of the directive.
The ECJ held that the health and safety objective of the prohibition against dismissal means that the earliest point of pregnancy has to be chosen to determine when protection against dismissal begins. However, for the sake of legal certainty, protection could not extend to a worker when the egg had not yet been transferred into her uterus. To find otherwise would mean that a woman could have protection against dismissal for pregnancy even where the transfer of the ova was postponed, potentially for a significant number of years, or even indefinitely. The ECJ went on to say, however, that its findings on this point did not preclude a woman from seeking to rely on the protection against sex discrimination contained in the Equal Treatment Directive. It said that the dismissal of a female worker because she is undergoing IVF constitutes direct discrimination on the grounds of her sex.
The ECJ’s findings in this case are perhaps not surprising, but they do provide clarity for employers in relation to the employment protection afforded to female employees undergoing IVF treatment.
In the UK the relevant protection is contained in the Sex Discrimination Act 1975 (SDA) and the Employment Rights Act 1996 (ERA). The SDA explicitly prohibits discrimination on the grounds of pregnancy. The ERA protection includes making it automatically unfair to dismiss a woman when the reason (or principal reason) for the dismissal is connected to her pregnancy. In light of the ECJ’s decision, a woman will only receive protection relating to pregnancy if she is indeed pregnant. The fertilisation of an egg as part of IVF will not be sufficient to constitute a pregnancy until the egg is transferred into the uterus. However, employers must not treat a female employee undergoing IVF less favourably simply because of the treatment she is receiving or because she may, as a result, become pregnant at some time in the future. This will be direct sex discrimination for which compensation is unlimited.