‘The Status to be Accorded to Motherhood’: Case C‐32/93, Webb v EMO Air Cargo (UK) Ltd1
| Author | Erika Szyszczak |
| Published date | 01 November 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02056.x |
| Date | 01 November 1995 |
CASES
‘The Status to be Accorded to
C-32/93,
Webb
v
EM0
Air
Motherhood’
:
Case
Cargo
(UK)
Ltd‘
Erik
Sqyszczak*
In
Dekker
v
Stichting Vormingscentrum
voor
Jonge Volwassen
(VJV-
Centrum)
Plus2
and
Handels-og Konto@nktionaeremes Forbund
i
Danmurk (acting for
Hertz)
v
Dansk Arbejdsgive~orening (acting for
the European Court of
Justice (ECJ) accepted the fact that pregnancy is something which uniquely affects
women, and thus a dismissal or refusal to hire a woman because she is pregnant
amounts to direct discrimination contrary to the Equal Treatment Dire~tive,~
without the need to draw comparisons with the treatment of a man. In arriving at
this conclusion, however, the Court created a number of ambiguities. First, the
ECJ has implied that the crucial issue in pregnancy discrimination is the
employer’s motive for hidher actions. Secondly, the ECJ has drawn an arbitrary
distinction between action relating to a woman’s pregnancy and action taken after
the pregnancy which
may
be equated with illness. In relation to the latter, Member
States are given discretion to determine how long post-confinement protection
should last and, once
this
has elapsed, the traditional comparison with the
treatment of a male employee may play a part in deciding
if
sex discrimination has
occurred. Two subsequent cases have also raised doubts about the logic of the
ECJ’s reasoning and the lengths to which it is prepared to go to protect the unique
role women play in society.
In
Webb
v
EM0
Cargo (UK) Ltd,
the House
of
Lords referred the issue of
whether an employer could dismiss a pregnant woman employed on an indefinite
contract but whose more immediate task was to provide cover for another woman
due to take maternity leave. Relying upon the interpretation of the Sex
Discrimination Act
1975,
under national law the House of Lords was able to find
that such action would amount to direct discriminati~n.~ But when examining the
motive for the dismissal
-
in
this
case the motive given was that at the crucial time
the applicant would be unavailable for work
-
the House of Lords reverted to
making a comparison with the treatment given or likely to be given to a man in a
comparable situation. Ostensibly to seek guidance from the ECJ on the
implications
of
Dekker
and
Hertz
(and perhaps to invite the ECJ to reconsider the
ambit
of
its rulings), the matter was referred under Article
177
EC.
The ECJ ruled that the protection afforded to a woman during pregnancy and after
childbirth cannot
be
dependent upon whether her presence was essential to the
*London School
of
Economics.
1
[1994] ECR 1-3567.
2 Case 177/88 [1990] ECR 3941.
3 Case 179/88
[1990]
ECR 1-3979.
4
Council Directive 76/207/EEC,
OJ
1976 L-39/76. Note the criticisms
of
earlier cases such as Case
184183,
HofiMnn
v
Barmer Ersatzkasse
[1984] ECR 3047, where the ECJ took account
of
the specific
circumstances
of
motherhood in caring for babies and refused to extend EC
law
to
settle questions
concerning the organisation of the family or alter the division
of
responsibility between parents:
Curtin,
Irish
Employment
Equality
Law
(Dublin: Round Hall Press, 1989) p
80.
5 See
Bamforth,
‘The Changing Concept
of
Sex Discrimination’ (1993) 56 MLR 872.
0
The Modem Law Review
Limited
1995
(MLR
58:6,
November). Published by Blackwell Publishers,
108
Cowley Road, Oxford OX4
IJF
and 238 Main Street, Cambridge, MA 02142, USA.
860
To continue reading
Request your trial