This week the European Court of Justice (ECJ) ruled that protection against dismissal afforded to women by the Pregnant Workers EC Directive could not apply to women who were undergoing IVF treatment, but were not legally pregnant at the time of their dismissal.
The ruling came after a Salzburg court asked the ECJ to clarify the employment and maternity position of Austrian waitress, Ms Sabine Mayr. Ms Mayr, who had been receiving IVF treatment, was dismissed from her job three days before her fertilised eggs were implanted into her uterus. Her claim was based upon the argument that she was 'technically pregnant' from the date of fertilisation and therefore it was irrelevant that the eggs had not yet been implanted. If this proposition were held to be correct, then the Directive could be invoked to support her case.
However, as 'a principle of legal certainty', the court ruled that this was not the position. Instead they said that 'the protection against dismissal established by the EU Directive on the safety and health at work of pregnant workers cannot be extended to a pregnant worker where, on the date she is given notice of her dismissal, the 'in vitro' fertilised ova have not yet been transferred into her uterus'. The reason for this decision was that to hold to the contrary would be to set a legal precedent, which effectively would offer protection on maternity grounds for anyone undergoing IVF for an indefinite time span - even to those who choose never to transfer the fertilised eggs. Clearly, the ECJ saw this as going a step too far.
But the news was not all bad for women undergoing IVF treatment. Whilst Ms Mayr's claim failed on pregnancy grounds, the court declared that she could be entitled to some protection under EU anti-discrimination and equal treatment laws. 'Treatment such as Ms Mayr has undergone directly affects only women. The dismissal of a worker essentially because she is undergoing a transfer of fertilised ova into her uterus therefore constitutes direct discrimination on grounds of sex', the court proclaimed. On the subject of managing an employee's pattern of absence from work during IVF treatment, Martin Warren, head of employment law at Eversheds law firm, commented: 'Previously, this may have led some employers to discipline or even dismiss a woman undergoing treatment but this ruling clarifies that this could now be considered an unlawful and potentially highly costly course of action'. In the case of Ms Mayr, it is now up to the Austrian court to determine whether her IVF treatment had been the substantive reason behind her dismissal.