Law Report: Pregnancy dismissal amounted to sex discrimination

Law Report 26 October 1995: Webb v EMO Air Cargo (UK) Ltd; House of Lords (Lord Keith of Kinkel, Lord Griffiths, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley); 19 October 1995

Webb v EMO Air Cargo (UK) Ltd; House of Lords (Lord Keith of Kinkel, Lord Griffiths, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley); 19 October 1995

The pregnancy of a woman who had been engaged for an indefinite period of employment and who would thereby be unavailable for work at a time when to her knowledge she was particularly required was a circumstance relevant to her case of discrimination on the ground of her sex even though that circumstance could not be present in the case of the comparative hypothetical man.

The House of Lords allowed an appeal by Carole Louise Webb from decisions that she had not been discriminated on the ground of sex and remitted the case to an industrial tribunal to assess compensation.

Mrs Webb was engaged by EMO to replace a pregnant employee during the latter's maternity leave. Shortly afterwards, Mrs Webb discovered that she too was pregnant, her baby being expected at roughly the same time as the other employee. EMO dismissed her. Mrs Webb claimed that her dismissal constituted discrimination against her on the ground of her sex, contrary to section 1 of the Sex Discrimination Act 1975.

On a reference to the European Court of Justice on the construction of article 2(1) of the Council Directive 76/207, the equal treatment directive, the ECJ decided that there could be no question of comparing the situation of a woman who found herself incapable, by reason of pregnancy, of performing the task for which she was recruited, with that of a man similarly incapable for medical or other reasons.

The fact that the woman was initially recruited to replace another employee during the latter's maternity leave could not affect the answer to be given; and the answer must be that article 2(1) read with article 5(1) precluded dismissal of an employee who was recruited for an unlimited term with a view, initially, to replacing another employee during the latter's maternity leave and who could not do so because, shortly after recruitment, she was herself found to be pregnant.

Laura Cox QC and Deborah King (Hillingdon Legal Resource Centre) for Mrs Webb; David Pannick QC (Treasury Solicitor) as amicus curiae.

Lord Keith said that it was apparent from the ECJ's ruling that it was considered to be a relevant circumstance that Mrs Webb had been engaged for an indefinite or unlimited period. That suggested the possibility of a distinction between such a case and the case where a woman's absence due to pregnancy would have had the consequence of her being unavailable for the whole of the work for which she had been engaged. Such a situation might occur where the work was of a purely seasonal duration.

If such a situation did not fall to be distinguished, so that an employer who failed to engage a woman who, due to pregnancy, would not be available for any part of the period of the proposed engagement was to be made liable for wrongful discrimination, the result would be likely to be perceived as unfair to employers and as tending to bring the law on sex discrimination into disrepute.

The ruling of the ECJ proceeded on an interpretation of the broad principles in articles 2(1) and 5(1). Sections 1(1)(a) and 5(3) of the Sex Discrimination Act 1975 set out a more precise test of unlawful discrimination and the problem was how to fit the terms of that test into the ruling.

The only way was to hold that, where a woman was engaged for an indefinite period, the fact that the reason why she would be temporarily unavailable for work at a time when to her knowledge her services would be particularly required was pregnancy was a circumstance relevant to her case, being a circumstance which could not be present in the case of the hypothetical man.

It did not necessarily follow that pregnancy would be a relevant circumstance where the woman was denied employment for a fixed period in the future during the whole of which her pregnancy would make her unavailable for work, nor where after engagement for such a period the discovery of her pregnancy led to cancellation of the engagement.

Lord Griffiths, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn agreed.

Ying Hui Tan, Barrister