The Gazette 1994

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GAZETTE AUGUST/SEPTEMBER 1994
Industrial Tribunal held that the real
reason for her dismissal was her non-
availability during the crucial time for
which she had been hired, and that a
man with a similar non-availability
would have been similarly treated. The
Court of Appeal upheld this decision
and Ms Webb appealed to the House of
Lords, who dismissed the appeal
holding that her treatment was not on
grounds of her sex as it was the same
treatment as would have been accorded
to a man who was similarly unavailable
at the material time. The fact that the
reason was only capable of affecting
the female sex was irrelevant and the
court did not consider that the
decisions of the European Court of
Justice in Dekker and Hertz were
concerned with this issue of non-
availability at the material time.
The decision of the House of Lords
could have been interpreted as an
attempt, similar to that of the Court of
Justice in Hertz, to place some
limitation on the reasons for dismissal
which can be linked with a person's
sex rather than a simple espousal of the
comparison between a pregnant woman
and a sick man, reminiscent of the
approach taken in, inter alia, Hayes
and Long. However in a later decision
of the British Employment Appeal
Tribunal14 the decision in Webb was
clearly interpreted as approving
strongly of the comparison of a
pregnant woman with a sick man. This
resulted in the dismissal of two women
on grounds of their pregnancies being
upheld as sick male employees would
have been similarly treated.
That approach was unequivocally
disapproved of by the Court of Justice
in their overruling of the House of
Lords in Webb. In a judgment strongly
supportive of protection for pregnant
workers the court set out the "general
context" of such protection:
1. The Equal Treatment Directive:
Article 2(3) recognised the
legitimacy, in terms of the principle
of equal treatment, first, of
protecting a woman's biological
condition during and after
pregnancy, and, second, of
protecting the special relationship
between a woman and her child
over the period which followed
pregnancy and childbirth.
2. The Pregnancy Directive15 Article 10
prohibited dismissal of a pregnant
worker from the beginning of her
pregnancy to the end of her
maternity leave, in view of the
harmful effects which the risk of
dismissal might have on the physical
and mental state of such women. j
On the basis of that legislative context,
the court laid down two principles:
1. There could be no question of
comparing a pregnant woman who
found herself incapable of
performing the task for which she
had been recruited, by reason of her
pregnancy, with a man similarly
incapacitated due to illness. That
clear distinction between pregnancy
and illness had been drawn in Hertz
where the Court had ruled that the
dismissal of a female worker on
account of pregnancy constituted
direct discrimination on the ground
of sex.
2. The protection afforded by
Community law to a woman during
pregnancy and after childbirth could
not be dependent on whether her
presence at work during maternity
was essential to the proper
functioning of the undertaking in
which she was employed. Any
contrary interpretation would render
ineffective the provisions of the
directive. Thus, the fact that Ms.
Webb was initially recruited to
cover during the maternity leave of
another employee could not affect
these principles of Community law.
The court's judgment clearly puts an
end to any possibility of justifying
discrimination on grounds of
pregnancy either on the basis of
comparing a pregnant woman with a
sick man or by basing her different
treatment on grounds other than her
pregnancy but a result of it, such as
non-availability during maternity leave
etc. In the light of sizeable awards
made recently in the UK to women
dismissed from the armed forces
because of pregnancy, the financial
implications of the judgment is also
considerable.16
Along with the impending legislation
implementing the Pregnancy Directive,
whereby pregnant women who are
unable to perform their duties due to
their condition will have to be given
extended maternity leave (whereas in
the past they could have been fairly
dismissed 17), the judgment is to be
welcomed as affirmation of the high !
level of protection to be given to
pregnant women in the workplace.
Both developments represent
significant progress in enabling women
to participate fully in the workplace as i
women who are fundamentally
different to men in certain respects,
rather than as women trying to
minimise those differences in an effort
to conform to the prevalent male norm
of the working world.
References
1. 1974 Equal Pay Act, implementing Equal
Pay Directive 75/117/EEC; 1977
Employment Equality Act, implementing
Equal Treatment Directive 76/207/EEC.
2. [1992] 2 All E.R. 929.
3. Judgment delivered July 14 1994.
4. Directive 76/207/EEC.
5. [1980] ICR 66.
6. [1985] ICR 703.
7. EE5/88. The case was later successfully
argued on the grounds of indirect !
discrimination. EE 15/91.
8. DEE4/82. See also North Western Health
Board -v- BradyEE8/85; DEE9/85.
9. Section 2(c) Employment Equality Act
1977.
10. Dekker-v-Stichting Vorminnscentrum
Case 177/88 [1990] ECR 1-3941.
11. Handels-og Kontorfunktionoerenes
Forbund i Danmark (Hertz) -v- Dansk
Arbejdsquiverfin Case 179/88 [1990] ECR
1-3979.
12. The Court of Justice's decision has been
expressly followed by Irish Equality
Officers in a number of determinations;
see Department of Defence -v- An
Employee EE 3/92, DEE 14/92;
Department of Defence -v- An Employee
EE4/92; Department of Agriculture -v-
Kennedy-Barry EE7/92.
13. Since then the Court held in Birds Eye !
Walls Ltd -v- RobertsCase C-132/92
[ 1994] IRLR 29 that direct discrimination
can be lawful where the difference is
i based on an "objective premise." However
it is likely that this development will be
limited to the very specific facts of that
case where a holding of unlawful direct
discrimination would have led to unequal
treatment.
14. Dixon -v- Rees, Hopkins -v- Shepherd &
Partners [1993] IRLR 468.
15. Directive 92/85/EEC of 19 October 1992. i
j 16. See for example the case of Ms Nicola
Cannock who claimed that her pregnancy
resulted in an end to her career with the
RAF and was awarded £172,912; Irish
Times 26 November 1993.
17. Section 6(2)(f) Unfair Dismissals
Act 1977. •
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