Fertility treatment dismissal

Case 2: The facts

Ms Mayr, an Austrian waitress, was off sick from 8–13 March as a result of in vitro fertilisation (IVF) treatment. She was given notice of dismissal on 10 March. At that time, two ova had been extracted and fertilised, but they were not transferred to her uterus until 13 March. Ms Mayr claimed discrimination in the Austrian courts and an issue arose as to whether she was a “pregnant worker” for the purposes of the Pregnant Workers Directive (PWD) at the time of her dismissal.

The ruling

The ECJ said Mayr was not covered by the Pregnant Workers Directive because she was not yet pregnant. In regard to IVF, this could not occur before the date of transfer of fertilised ova to a woman’s uterus. However, Mayr could still claim sex discrimination contrary to the Equal Treatment Directive. Dismissal of a female worker because she is undergoing an advanced stage of IVF treatment, constitutes direct sex discrimination. The case would be sent back to the national court to decide whether this was in fact the reason why Mayr was dismissed.