Pregnancy Discrimination in the UK and the European Union Dr Katarzyna Gromek-Broc York Law School

Direct Discrimination Direct Discrimination ▪ Direct Discrimination consists of treating a worker less favourably on grounds of sex or on racial grounds than another worker similarly situated to him/her ▪ The central test for sex discrimination is a comparison with a similarly situated man ▪ Essential feature: Use of comparator ▪ Essential feature: Use of comparator

Is the discrimination on the grounds of pregnancy direct sex discrimination? Domestic Law: UK UK case: Turley v. Allders Stores 1980 (non male comparator: non- discrimination) UK case: Hayes v Malleable working Men’s Club 1985 (pregnant woman compared to a sick man)

Need to protect pregnant workers on the EC level 1: Legislation: essential essential ▪ Equal Treatment Directive 1976 /amended 2002 ▪ Pregnant Workers Directive 92/85 helpful helpful ▪ Parental Leave Directive 96/34 ▪ Part time Work Directive 99/70 ▪ Fixed-term Work Directive Parental Leave, Flexible Time 2: Case Law ▪ Dekker, Webb, Melgar, Tele Danmark, Alabaster,

European Level: Law applicable to all Member States European Court of Justice Dutch case and the ECJ: Dekker 1991 (a pregnant woman selected for the post of training instructor in a youth centre) ECJ 1): “a refusal to employ a worker by virtue of her pregnancy amounted to direct sex discrimination contrary to the 1976 Equal Treatment Directive”

Dutch case Dekker 1991 ECJ 2) “ A refusal to employ because of the financial consequences of absence connected with pregnancy amounts to direct sex discrimination. Such discrimination cannot be justified by the financial detriment in the case of a pregnant woman suffered by the employer during her maternity leave” ECJ 2) “ A refusal to employ because of the financial consequences of absence connected with pregnancy amounts to direct sex discrimination. Such discrimination cannot be justified by the financial detriment in the case of a pregnant woman suffered by the employer during her maternity leave”

EC/EU Law and Domestic Law approaching Pregnancy Contradiction between the domestic and European Law (EC/EU Law prevails) Hayes (UK): Comparative Approach Dekker (NL): Protected Status Approach

Solution in the Webb case Webb: UK Case Webb v Cargo (UK 1992, 1995) & ECJ case (employed to cover another employee on maternity leave but becomes pregnant herself, after dismissed on the basis that unable to fulfil a substantial part of her contract: to cover an absent employee) Webb: UK Case Webb v Cargo (UK 1992, 1995) & ECJ case (employed to cover another employee on maternity leave but becomes pregnant herself, after dismissed on the basis that unable to fulfil a substantial part of her contract: to cover an absent employee) UK judgment: House of Lords: dismissed not on the grounds of her pregnancy but because of the consequences of the pregnancy (unable to work) so not unlawful (a man unable to work would have been dismissed) UK judgment: House of Lords: dismissed not on the grounds of her pregnancy but because of the consequences of the pregnancy (unable to work) so not unlawful (a man unable to work would have been dismissed)

EC/EU Law and Pregnancy ECJ (1994) in Webb: 1: Pregnancy discrimination is direct sex discrimination 2: Employers cannot now use pregnancy and maternity as criteria in decision making over recruitment, promotion or dismissal 3: This is without regard to how a man in comparable circumstances would be treated: that an employer would treat a sick man equally badly is not held to be a relevant consideration that an employer would treat a sick man equally badly is not held to be a relevant consideration

In line with Dekker and Webb Protective status approach : Spanish case: Melgar v. Ayuntamiento de los Barrios [2001] IRLR 848 Melgar v. Ayuntamiento de los Barrios [2001] IRLR 848 (Ms Melgar employed as a home help on a series of fixed term contracts, claiming dismissal on the grounds of her pregnancy) the non renewal of a pregnant workers fixed-term contract did not amount to a dismissal contrary to the Pregnant Workers’ Directive. However, this fact should be regarded as direct sex discrimination as motivated by the complaint’s sex contrary to the ETD ECJ: the non renewal of a pregnant workers fixed-term contract did not amount to a dismissal contrary to the Pregnant Workers’ Directive. However, this fact should be regarded as direct sex discrimination as motivated by the complaint’s sex contrary to the ETD 1976.

In line with Dekker and Webb Tele Danmark v. Brandt-Nielson [2001] IRLR 853 (Ms Brandt-Nielson employed for six months from July to January (fixed-term) pregnant but did not inform her employer when recruited, so dismissed on this basis)

Tele Danmark v Brandt-Nielson Tele Danmark: 1. she failed to inform about her pregnancy during recruitment – a breach of the duty of good faith 2. Dismissed because “ unable to perform a substantial part of the contract Ms Brandt-Nielson 1. No obligation to inform a prospective employer since the employer is not entitled to take it into account while recruiting 2. It should be no distinction between an indefinite or fixed-term contract regarding pregnancy

Tele Denmark v. Brandt-Nielson ECJ: dismissal of a worker on account of her pregnancy was discriminatory regardless of the financial loss which would incurred by the employer and regardless of whether she was taken on for an indefinite or a fixed-term contract

Further Developments  UK/EU Case Alabaster v Barclays Bank plc[2005] EWCA Civ 508; IRLR576  ECJ: Failure to incorporate her pay rise into SMP was a breach of EU law  UK: Court of Appeal: although no male comparator Ms Alabaster was entitled to claim under EPA 1970

Further Developments  UK case Fletcher v Blackpool Fylde & Wyre Hospitals [2005] IRLR 689  Midwifes engaged in vocational training outside of legal protection offered to employees were entitled to retain the financial support provided for their training during her maternity leave

UK: Pregnancy protected by Statute  Article 3A SDA 1975 (as amended 2005):  Now EqA 2010 s.18  A person discriminates against a woman if  ‘(a) at a time in a protected period, and on the ground of the woman’s pregnancy, the person treated her less favourably than he would treat her had she not become pregnant’.  Criticized by the High Court in EOC v Secretary of State for Trade and Industry [2007]  the statement introduces requirement for a non pregnant woman comparator (so it needs to be changes as well as section 6A: difference of treatment between ordinary and additional maternity leave. (section amended by SI 2008/656)

Pregnancy: follow up  ECJ: Case Mayr vBackerei und Konditorei [2008] IRLR 387  Woman who was undergoing in vitro fertility treatment. She claimed that she was protected as a pregnant woman. At the time of her dismissal her fertilized extracted ova had not yet been transferred to her uterus. The Court of Justice held that she could not yet claim to be pregnant, but she might have a sex discrimination claim as only a woman could undergo this treatment

EU Law  New Developments:  ECJ Pontin/Comalux C-63/08 [2009]: remedy under national Law  Pregnancy and Equal Pay  Gassmayr C-194/08 [2010]  Parviainen C-471/08 [2010]