The Gazette 1994

AUGUST/SEPTEMBER

1994

GAZETTE

Di sc r imi na t i on on Grounds of Pregnancy as Sex Di sc r imi na t i on

discriminatory treatment to be justified, even if it was indirectly discriminatory.

By Marguerite Bolger LL.B, M. Litt., BL.

The real breakthrough for the i protection of pregnant women at work | came with two judgments delivered by the European Court of Justice on the | same day, Dekker m and Hertz ". In a clear, but unfortunately brief, judgment j the Court held in Dekker that:

In spite of a legislative framework designed to ensure equality for women ! in the workplace 1 , working women are ! undoubtedly still subject to discrimination. One of the most prevalent grounds of such i discrimination is pregnancy, the excuse being that it is not because the victim of discrimination is a woman that she is being treated differently, rather it is because she is pregnant. Clearly, this is blatant sex discrimination as only women can become pregnant. Over the last number of years the law has gradually come to terms with this reality and has I encouraged the development of ! discrimination against a woman on ! grounds of pregnancy as direct, and | thereby unjustifiable, discrimination I on grounds of her sex. This development suffered a setback in the House of Lords judgment of Webb -v- EMO Air Cargo (UK) Ltd 2 where it was held that a pregnant woman who had been dismissed for nonavailability during her maternity leave was not discriminated against on grounds of her sex, as a man in comparable circumstances would have been similarly treated. However the European Court of Justice in its recent judgment 1 unambiguously rejected the reasoning of the House of Lords and any possible comparison between pregnant women and sick men in giving a strong endorsement to the categorisation of pregnancy discrimination as directly unlawful under the Equal Treatment Directive 4 . As recently as the early 80s there was no question of discrimination on grounds of pregnancy being unlawful sex discrimination. A typical case was Turley -v- Adlers Department Store 5 where the English Employment Appeals Tribunal stated:

". . only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex."

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This reasoning was followed in Hertz, but the protection against discrimination on grounds of pregnancy was limited to the period of j the woman's maternity leave, after j which time an illness on grounds of pregnancy could be treated the same as any other illness. legal protection now available to pregnant women against discrimination for the entire duration of their pregnancy and maternity leave was j highly significant. 12 As the court had j expressly held such discrimination to be direct, it was providing the highest level of protection possible, which could not be justified by any of the employer's needs. 11 The clarity of the principles espoused by the court national courts. In spite of this, an attempt was made by the UK House of Í Lords in Webb to avoid the logical j implications of Dekker and Hertz. Ms Webb was employed by the defendants to replace another employee during maternity leave and was to be I kept on thereafter as a permanent | employee. She was to undergo a six month training period before the three month maternity leave began. Two weeks after starting work, Ms Webb announced that she, too, was pregnant, and was immediately dismissed. The 383 Even in spite of this limitation, the j j j seemed to leave little leeway to the |

Marguerite

Bolger

"It is not on the ground of her sex that you are treating her less favourably than you would treat a man, but on the ground that she is no longer simply a woman but she is a woman carrying a child."

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This harsh approach was somewhat alleviated by Hayes -v- Malleable

Mens Working Club b where the tribunal I did allow comparison with a sick man. That same approach found favour with ; the Irish Equality Officer in Long -v- \ Quinnsworth 1 where an employer who had dismissed a man with a broken leg ! as well as a pregnant woman was held j not to be guilty of direct sex discrimination. • | j categorising pregnancy discrimination as indirect discrimination as in Williams -v- An Foras Forbatha 8 as the proportion of men able to comply with a requirement not to be pregnant is significantly higher than the proportion of women. However this approach is not satisfactory as indirect discrimination can be clearly seen in the judgment of Lord Keith in Webb - v- EMO Air Cargo (UK) Ltd in the Some relief was to be found in

House of Lords where he had no difficulty in finding Ms Webb's