The ECJ last week handed down its much-anticipated judgment in Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG on the dismissal of a female employee undergoing advanced in vitro fertilisation ("IVF") treatment. The decision clarifies when during IVF treatment a woman is classified as "pregnant" and protected by the Pregnant Workers Directive and is a useful warning to employers of the risks via the Equal Treatment Directive of dismissing employees undergoing fertility treatment.

This case concerned a waitress ("M") in Austria who was at an advanced stage of IVF treatment. Her doctor certified her sick following a further course of IVF treatment. Whilst off sick, her employer dismissed her. M informed her employer that her ova had already been fertilised. However it was not until after her dismissal that the ova were transferred into her uterus. She claimed that she was entitled to protection against dismissal under national law implementing Art. 10 of the EC Pregnant Workers Directive 92/85/EEC (the "Pregnancy Directive"). The employer argued that at the time of dismissal, M was not actually pregnant and was therefore not entitled to protection under the law. The national court referred the case to the ECJ to decide whether the Pregnancy Directive, which prohibits the dismissal of pregnant workers, applied to someone who had yet to have their fertilized ova implanted into her uterus.

The ECJ ruling was that the Pregnancy Directive cannot apply to M's situation. The Court took a pragmatic view that IVF treatment may last for an indefinite period, that the transfer of the fertilised ova may be postponed or even abandoned; therefore pregnancy can only occur upon transfer of the fertilised ova into the uterus.

However, the ECJ also ruled that a woman in M's situation could potentially rely on Art. 2(1) of the EC Equal Treatment Directive 76/207/EEC (the "Equal Treatment Directive") for protection against dismissal at the advanced stages of IVF treatment, which like pregnancy, only directly affects women. Therefore the Equal Treatment Directive prohibits the dismissal of a woman who is at an advanced stage in her IVF Treatment if the decision to dismiss her is based on the fact that she has undergone such treatment.

Employers should therefore be cautious when dismissing a female employee undergoing IVF treatment as the dismissal may be deemed discriminatory. Employers also need to recognise that fertility treatment is not a female specific issue and that men are also seeking such treatments.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.



The original publication date for this article was 03/03/2008.