Pregnancy Discrimination
| Published date | 01 July 1996 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02101.x |
| Date | 01 July 1996 |
Pregnancy Discrimination
Erika Szyszczak”
On 19 October 1995, in
Webb
v
EM0
Air Cargo
(UK)
Ltd
NO^),'
the House of
Lords interpreted the Sex Discrimination Act 1975 to give effect to, but also create
some ambiguity as regards, the ruling of the Court of Justice.2 Initially, the House
of Lords felt that the Sex Discrimination Act 1975 was clear: it was not contrary to
that Act to dismiss a woman for being unable to carry out her contract of
employment if a man would receive comparable treatment in similar
circumstances. Thus, the provision of national law was not ambiguous. The
question was whether the Act should and could be interpreted in
a
different way
so
as to give effect to EC obligations
without distorting the meaning
of
the
Unfortunately, questions on procedure and the scope of indirect effect did not form
part of the Article 177 EC reference. The Court of Justice reaffirmed its rulings in
Dekke4
and
Hertz’
that to refuse to hire
or
to dismiss a woman on the grounds of
pregnancy constitutes sex discrimination within the meaning of the Equal
Treatment Directive 76/207/EEC,6 but the Court underlined the fact that
Ms
Webb had
been
hired on an open-ended contract of employment. She was therefore
unable to perform her work for only a short period and it was not impossible for
her to perform the contract.
The
Court was not clear as to what would be the
situation
if
the woman was employed on a temporary or specific task contract:
whether the dismissal would fall outside the ambit of its ruling or whether it
constituted direct discrimination which could be justified.’
Only one substantive speech is given in the House of Lords, by Lord Keith of
Kinkel, with the other Law Lords in agreement. After explaining the facts and
repeating paragraphs 24-29
of
the Court of Justice’s ruling, Lord Keith argues
that:
It is apparent from the ruling of the Court, and also from the opinion of the Advocate
General, that it was considered to
be
a relevant circumstance that the appellant had been
engaged for an indefinite or unlimited
period
.
.
.
The
emphasis placed by the court upon the
indefinite duration of the appellant’s contract of employment suggests the possibility of a
distinction between such a case and the case where a woman’s absence due to pregnancy
would have the consequence of her being unavailable for the whole of the work for which
she had been engaged.8
*Senior Lecturer in Law, London School of Economics.
I
[
19951 4
All
ER 577.
2 Case C-3294
[
19941 ECR 1-3567. Noted Szyszczak (1995) 58 MLR 860.
3
Duke
v
GEC
Reliance
Ltd
[
19881 AC 618,
per
Lord Templeman, at pp 639-640.
In
its earlier ruling in
Webb
[
19931
1
WLR 49, the House of Lords quietly dropped its limitation that legislation
preceding
a
Directive could not
be
interpreted
so
as
to give effect to EC obligations.
4 Case C- 177/88
[
19901 ECR 1-394
1.
5
Case C-179/88 [1990] ECR 1-3979.
6
OJ
L39/76.
7
At
para 27, the Court states: ‘In circumstances such
as
those of Mrs Webb, termination of
a
contract
for
an
indefinite
period
on grounds of the woman’s pregnancy
cannot be justified
by the fact that she is
prevented, on
a
purely temporary basis, from performing the work for which she has
been
engaged
. .
.’
[author’s emphasis].
[I9951
4
All
ER 577, 581.
8
589
0
The Modern Law Review Limited
1996
(MLR 59:4, July). Published by Blackwell Publishers,
108
Cowley Road,
Oxford
OX4
IJF
and 238 Main Street, Cambridge, MA 02142, USA.
To continue reading
Request your trial