The Romanian Constitutional Court has recently analysed[1] the constitutionality of art. 60 para. (1) letter (c) of the Labour Code regarding the (non) dismissal of pregnant employees. Although the Romanian Constitutional Court concludes that the above provisions do not violate the Romanian Constitution, it clarifies the fact that an employer is entitled to dismiss any of its pregnant employees for reasons not connected to their pregnancy.

While the Government Emergency Ordinance No. 96/2003[2] regarding the protection of maternity at work expressly provides that an employer is not allowed to dismiss its pregnant employees for reasons directly related to their condition, the provisions of the Labour Code are not so clear (i.e., the Labour Code does not make any distinction, it just states that the pregnant employee cannot be dismissed). Therefore, these two pieces of legislation have led to multiple controversies.

When is an employer allowed to dismiss a pregnant employee?

While analysing the constitutionality of art. 60 para. (1) letter (c) of the Labour Code, the Romanian Constitutional Court stated the following:

• all legal provisions regarding the maternity protection must be interpreted as a whole and the lack of clarity in art. 60 para. (1) letter (c) of the Labour Code should not be construed as prohibiting dismissal for disciplinary reasons; and
• the prohibition of a pregnant employee’s dismissal is strictly limited to her condition and not to other cases in which the termination of the employment agreement is the result of disciplinary offenses, serious misconduct, unjustified absence from work, generally non-compliance with work discipline, economic reasons or collective redundancies.

Thus, such a dismissal decision for reasons unconnected with the employee’s pregnancy is valid, provided the employer relies on one of the legal grounds for dismissal. Only if a dismissal decision is taken for reasons essentially connected with the employee’s pregnancy, the employer will be in breach of the prohibition on dismissal laid down in art. 60 para. (1) letter (c) of the Labour Code and the dismissal decision can be invalidated.