Decision of the Hungarian Constitutional Court on the Protection of Pregnant Women against Termination

The Court’s ruling

In May 2014, the Hungarian Constitutional Court (Alkotmánybíróság; HCC) ruled that the provision of the Hungarian Labour Code that required women to inform their employers of their pregnancy to enjoy protection against termination was unconstitutional. The same applies to the information requirement about participation in fertility treatments.

According to the ruling, the relevant provisions of the Labour Code were not proportionate and contrary to the employee’s rights. Due to the prior notice requirement, the employees were pressured to inform the employer of the pregnancy or the participation in the fertility treatments already in the early period of the pregnancy, in which there is a higher risk of termination of pregnancy. This information is part of the private sphere of the individual and protected as a personal data. To inform the employer of all problems or details could be humiliating and unnecessary to be eligible for protection in connection with the pregnancy (ie, loss of baby).

The HCC balanced the employee’s interest to share this sensitive data with the employer only when it is suitable for her and the employer’s interest to be informed of the employees’ status. The employer has an interest in being informed thereof in order to be able to apply protective rules on health and safety, working time and working conditions too, not only to be aware of the protective measures against termination.

The HCC stated that an employee is free to decide when she wishes to use the benefits and protections to which she is entitled as a result of her status. The protection against the termination is a potential protection that becomes active only if the employer intends to terminate the employment relationship. The protection against termination applies even in the absence of prior notification by the employee. Therefore, it is sufficient to notify the employer of the pregnancy when the termination is communicated to the employee.

Duty to cooperate in good faith

An important part of the HCC’s decision is based on the general principle of the Labour Code that parties have a duty to cooperate in good faith and inform each other of circumstances relevant to their employment. If an employee is aware of her pregnancy when the termination is communicated and does not inform the employer, she cannot later refer to the protection because she breached her obligation to cooperate with the employer in good faith. However, if the employee was not aware of the pregnancy when the termination notice is delivered to her, protection from dismissal applies; the employee was not in breach of her information obligation when the notice was communicated.

Potential problem

As a consequence of the above argument, the HCC deleted the prior notice requirement from the Labour Code, but the employee must still inform the employer of her status to be protected. No time limit remained in the relevant provision, so it may occur that the employee becomes aware of her pregnancy only after her employment relationship has been terminated. In this case, the question may arise whether the employee is entitled to refer to the protection against a valid termination.

It is up to courts to clarify the time limit of the protection, giving special attention to adverse effects on the employment protection of women who plan to have a family.

No time limit remained in the relevant provision, so it may occur that the employee becomes aware of her pregnancy only after her employment relationship has been terminated.

authors: Kinga Hetényi, Anikó Nagy