Pregnancy Discrimination: Equality, Protection or Reconciliation?
| Date | 01 May 1999 |
| Published date | 01 May 1999 |
| DOI | http://doi.org/10.1111/1468-2230.00216 |
Pregnancy Discrimination: Equality, Protection or
Reconciliation?
Michael Wynn*
Dismissal for pregnancy-related sickness has been justified on financial and
administrative grounds for many years. Employers maintained that they should not
be burdened with the financial consequences of pregnancy and maternity where
this entailed long term incapacity even where subsequent dismissals infringed the
principle of equal treatment. Ever since the twin decisions of Dekker1and Hertz,2
the European Court of Justice has struggled to find an acceptable balance between
the equality principle and the demands of a male oriented labour market. Hertz
tipped the balance in favour of the latter by ruling that dismissal for absence after
maternity leave was not discriminatory even where the illness originated in
pregnancy. The Pregnant Workers Directive3which introduced special protection
for pregnant women throughout the pregnancy and maternity period, left the scope
of Hertz unclear. The Court has now clarified this vexed area of law in Brown v
Rentokil Ltd4by ruling that it is direct discrimination to dismiss a woman at any
time during her pregnancy for absences caused by pregnancy-related illnesses. The
Court has not, however, chosen to depart from the limitations imposed in Hertz and
followed in Larsson.5Brown highlights the limitations of the equality concept in
dealing with female difference in the workplace, as positive discrimination in
favour of motherhood is circumscribed by artificial time limits which are left to be
defined under the principle of subsidiarity. This is another pragmatic decision
which recognises that, for cost reasons, domestic and work roles must conform
with male work patterns outside a narrowly drawn maternity period.
The facts
Mary Brown was employed as a driver for Rentokil, servicing Sanitact units in
retail outlets. She regarded this job as heavy work. When she became pregnant in
August 1990, she informed Rentokil. She was absent from work from the middle of
August onwards and submitted certificates for symptoms described as ‘bleeding in
pregnancy’ and ‘pregnant backache’. She never worked again. Rentokil operated a
working rule under the contracts of employment of all its employees whereby any
employee who was absent for sickness for more than twenty six weeks
ßThe Modern Law Review Limited 1999 (MLR 62:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 435
* Faculty of Management and Business, University College Northampton.
Thanks to James Hanlon and the anonymous referee for helpful comments on an earlier draft.
1 Case C-177/88, Dekker vStichting Vormingscentrum Voor Jonge Volwassenen (VJV-Centrum) Plus
[1990] ECR I-3941.
2 Case C-179/88, Handels-Og Kontorfunktionaerernes Forbund I Danmark vDansk Arbejdsgiverforen-
ing [1990] ECR I-3979.
3 Directive 92/85/EC adopted on 19 October 1992, on the introduction of measures to encourage
improvements in the safety and health at work of pregnant workers and workers who have recently
given birth or are breastfeeding (OJ 1992 L 348, 1).
4 Case C-394/96 [1998] 2 CMLR 1049.
5Handels-Og Kontorfunktionaerernes Forbund i Danmark vDansk Arbedjdsgiverforening Case C-400/
95 [1997] ECR I-2757.
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