Further to the topic raised in the previous Newsletter about status of a board member at an enterprise in the context of the labour law and responses of the Court of Justice (hereafter CJ) to the request for preliminary ruling submitted by the Department of Civil Cases of the Senate of the Supreme Court (hereafter, the Senate) an overview of the adjudications contained in the judgment of the Senate will be given.
By the judgment of the Senate dated 19 January 2011 the judgment of the court of appeal was left unaltered by which the claim of the former board member (D. Danosa) against the company on recognition of the employment contract concluded, recognition of the decision of the shareholders‟ meeting of the limited liability company invalid, recognition of the termination notice invalid, reinstatement to the position and collection of work remuneration for the period of forced absence from work was dismissed.
As it was noted earlier, in this case CJ adopted the judgment in respect of the questions referred to it for preliminary ruling. Arising of the responses to the request for preliminary ruling Article 10 of Council Directive 92/85/EEC it is prohibited to dismiss pregnant women during the period of time from beginning of their pregnancy until the end of the maternity leave, if reason for dismissal is related to pregnancy. However, a pregnant woman can be laid off due to reasons not related to her pregnancy.
On the other hand, the Senate arrived at a conclusion in this case that, first, are regards members of executive bodies of commercial company the special tie of trust and implementation of strategic interests of the commercial company are grounds for a system which deviates from the general norms. Therefore a legal framework "less favourable" in certain cases can be allowed.
Secondly, the Senate concluded in the particular case that the claimant has not indicated in her statement of claim that recall from the position of a board member has been effected due to her pregnancy and that she has been discriminated. The claimant has not referred in the statement of claim itself to discrimination due to pregnancy or gender. On the contrary, the claimant maintains in her statement of claim that unfavourable treatment on the employer's part was caused by her opinion in respect of the issue concerning amendments to the articles of association and required number of board members.
Thus, the Senate arrived at a conclusion that dismissal of the claimant was conducted due to reasons not related to her pregnancy, and the rights granted by Council Directive 92/85/EEC are not applicable to the claimant in this case. Therefore the judgment made by the court of appeal by which the claim is dismissed is reasonable.
Sure, the right of an employer to dismiss a member of the executive body of the company – working pregnant woman (a woman working during the postnatal period or a breastfeeding woman) is a guarantee that operations of the company will be undisturbed in the event the employer has lost trust in this employee. Loss of trust in an employee who is a member of the executive body may manifest in all sorts of ways. Situation cannot be precluded that the member of the executive body has acted contradictory to the company's interests. There-fore such right of the employer is material in order to ensure normal operation of the company.
Notwithstanding the fore-going, one cannot preclude possible trend, out-lined in the previous article, that women will be appointed to executive bodies less frequently. The employer will be well aware of the guarantees established by Directive 92/85/EEC applicable to women that prevents them from being dismissed due reasons related to pregnancy. Therefore they will opt for men to hold offices in the executive bodies. Possible solution of this "covert" discrimination might be legal regulation that a certain portion of offices in the executive bodies has to be held by women (which is the case in Norway, for ex-ample). However, in such case a question arises how substantiated this limitation of the freedom of actions of the business entities would be and whether the general public would gain more benefit in such a way.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.