[JURIST] The European Court of Justice [official website] on Tuesday ruled [text; press release, PDF] that an employee's "dismissal essentially based on the fact that a woman is at an advanced stage of in vitro fertilisation treatment is contrary to the principle of equal treatment for men and women." The ruling came in the case of an Austrian woman who claimed that she was entitled to full payment of her salary and protection against dismissal from the time in vitro fertilization of her egg took place, even though the egg had not yet been implanted in her uterus. The woman was fired after her egg had been fertilized but three days before the egg was implanted; she argued that she was pregnant from the time the egg was fertilized and therefore her firing was illegal under Austrian law.
According to the court's summary of its decision:
In its judgment of today's date, the Court holds that, for reasons connected with the principle of legal certainty, the protection against dismissal established by the 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. If such a premiss [sic] were allowed, the benefit of the protection could be granted even where the transfer of the fertilised ova into the uterus is postponed, for whatever reason, for a number of years, or even where such a transfer is definitively abandoned.The ECJ directed the Austrian court considering the dispute to "determine whether the dismissal of Ms Mayr was, indeed, essentially based on the fact that she was undergoing in vitro fertilisation treatment." AP has more.
However, a worker who is undergoing in vitro fertilisation treatment can rely on the protection against discrimination on grounds of sex granted by the Directive on equal treatment for men and women.
On that basis, the Court points out that treatment such as that which Ms Mayr has undergone directly affects only women. The dismissal of a worker essentially because she is undergoing a follicular puncture and a transfer of fertilised ova into her uterus therefore constitutes direct discrimination on grounds of sex. The dismissal of a worker, in a situation such as that of Ms Mayr, would, moreover, be contrary to the objective of protection pursued by the Directive on equal treatment for men and women.