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GAZETTE
AUGUST/SEPTEMBER
1994
Di sc r imi na t i on on Grounds of
Pregnancy as Sex Di sc r imi na t i on
By Marguerite Bolger LL.B, M.
Litt., BL.
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:
Marguerite
Bolger
"It is not on the ground of her sex
that you are treating her less
i
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."
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.
•
|
Some relief was to be found in
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
House of Lords where he had no
difficulty in finding Ms Webb's
discriminatory treatment to be justified,
even if it was indirectly discriminatory.
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:
". . only women can be refused
5
employment on grounds of
pregnancy and such a refusal
therefore constitutes direct
discrimination on grounds of sex."
i
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.
Even in spite of this limitation, the
j
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
j
employer's needs.
11
The clarity of the
principles espoused by the court
j
seemed to leave little leeway to the
|
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
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