Webb v Emo Air Cargo (UK) Ltd (Case C-32/93)
Jurisdiction | England & Wales |
Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE BALCOMBE,LORD JUSTICE BELDAM |
Judgment Date | 20 December 1991 |
Judgment citation (vLex) | [1991] EWCA Civ J1220-10 |
Docket Number | 91/1259 |
Court | Court of Appeal (Civil Division) |
Date | 20 December 1991 |
[1991] EWCA Civ J1220-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE WOOD MC)
Royal Courts of Justice,
Lord Justice Glidewell
Lord Justice Balcombe
and
Lord Justice Beldam
91/1259
EATRF 90/0140/B
MR. S. SEDLEY QC and MISS D. KING (instructed by The Solicitor, Hillingdon Legal Resource Centre, Hillingdon) appeared on behalf of the Appellant (Applicant).
The Respondent did not appear and was not represented.
MR. D. PANNICK (instructed by The Treasury Solicitor, London SW1) appeared as amicus curiae.
By notice dated 2nd October 1987, the present appellant, Ms. Carole Louise Webb, applied to the Industrial Tribunal for a decision on the question whether she had been discriminated against on the basis of her sex. Her allegation was that the respondent company, EMO Air Cargo (UK) Ltd ("EMO"), had dismissed her by letter of 30th July 1987, giving the reason for the dismissal as pregnancy. She claimed compensation.
In a reserved decision sent to the parties on 7th April 1988, after a hearing on 15th February 1988, the Industrial Tribunal for London North (Mr. D. S. Laughton, Chairman, and two other members) decided that in dismissing Ms. Webb EMO had not discriminated against her on the ground of her sex.
Ms. Webb appealed to the Employment Appeal Tribunal. On 14th February 1990 that Tribunal, after a sitting of the full Tribunal (The Hon. Mr. Justice Wood, MC, President, and four other members) dismissed Ms. Webb's appeal.
Ms. Webb now appeals to this court on the ground that both the Industrial Tribunal and the Employment Appeal Tribunal erred in law. The appeal raises two important matters of principle:
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1. What is the proper interpretation of the provisions of the Sex Discrimination Act 1975 in relation to pregnancy? and
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2. What is the proper application of decisions of the European Court of Justice to that subject?
Before both the IT and the EAT Ms. Webb was represented by counsel. EMO in both Tribunals was represented by its Managing Director, Mr. Fullicks, who also gave evidence at the IT. In the EAT, as before this court, Mr. David Pannick appeared as amicus curiae. In the circumstances it would not have been possible to do justice to the appeal without his assistance.
The facts
The IT expressly accepted the accuracy of Mr. Fullicks's evidence. There is not and, indeed, there was not any real dispute as to the primary facts. There is an issue as to the proper inferences to be drawn from those primary facts. I summarise the facts as follows.
In June and July 1987 EMO had 16 employees. Four of these were in the import department. In June 1987 one of the import operations clerks, Mrs. Valerie Stewart, learned that she was pregnant. Her baby was due on 16 th February 1988. She was entitled to maternity leave and wished to return to work for EMO at the end of that leave. EMO needed to appoint a replacement for Mrs. Stewart, but anticipated that whoever replaced her would probably stay in employment when Mrs. Stewart herself returned. Mr. Fullicks decided that the replacement should be engaged immediately, to work with Mrs. Stewart as a trainee until such time as Mrs. Stewart went on her maternity leave, when he or she would take Mrs. Stewart's place.
Ms. Webb was interviewed for the job and told that it was available because Mrs. Stewart was pregnant. It was made clear to her that she was needed to replace Mrs. Stewart during the latter's maternity leave and to undertake training in the meantime. She was engaged and started work on 1st July 1987.
About two weeks after starting work the applicant thought that she herself might be pregnant and told Mrs. Stewart this. In fact, her suspicion was correct. On the following day Mr. Fullicks interviewed Ms. Webb, who repeated that she thought she was pregnant. Mr. Fullicks told her that he had no alternative but to dismiss her, but that she could choose whether to leave that day or at the end of the month. Having chosen the latter, on 30th July 1987 she received a letter of that date which stated:
"You will recall that at your interview some four weeks ago you were told that the job for which you applied and were given had become available because of one of our employees becoming pregnant. Since you have only now told me that you are also pregnant I have no alternative other than to terminate your employment with our company."
The IT records that at the date of its hearing (15th February 1988) Ms. Webb's confinement was expected on 8th March 1988.
Mr. Fullicks gave evidence (which, as I have said, was accepted by the IT) that EMO had no formal sick pay scheme, but that in practice an employee was given full pay on sick leave without a specific time limit. For this purpose men and women were treated the same. There had been one instance when a female employee was granted two to three months' sick leave in hospital on full pay. Ordinarily the position of an employee going into hospital to have a baby, resulting in three months' absence, would be the same, but Ms. Webb was engaged to take the place of Mrs. Stewart because of the latter's pregnancy. If Ms. Webb had become pregnant two or three months' later the circumstances would have been different and Mr. Fullicks would have felt better disposed towards her. If, on the other hand, Ms. Webb had said at the initial interview that she might be pregnant, she would not have been offered the post.
United Kingdom Legislation
Pregnant women in employment have, or may have, rights under two separate statutory regimes, those of the Employment Protection Acts and of the Sex Discrimination Act. The Sex Discrimination Act 1975 received the royal assent on the same day as the Employment Protection Act 1975. Many of the provisions of the latter Act are now embodied, with amendment, in the Employment Protection (Consolidation) Act 1978. Under this Act a woman employee is entitled to time off for antenatal care. Her major rights, however, are in the spheres of return to work and protection against unfair dismissal. Provided that a woman who becomes pregnant has been employed for at least two years she is entitled under the provisions of this Act to maternity leave and to return to her employment at the end of that leave. Moreover, if she is dismissed or if her employer refuses to allow her to return to work on the grounds of her pregnancy she will be held to have been unfairly dismissed. The one major change since the 1975 Act is that in that Act the qualifying period for these major rights was six months as opposed to the present two years.
Clearly Ms. Webb, who had been in EMO's employment only one month at the date of her dismissal, could not avail herself of any of these rights and, indeed, would not have been able to do so had the 1975 Act still been in force.
I turn, therefore, to consider the Sex Discrimination Act 1975. The provisions of this Act relevant to this case are as follows:
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1(1) A person discriminates against a woman in any circumstances relevant for the purposes of this Act if—
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(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or
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(b) he applies to her a requirement or condition which applies or would apply equally to a man but—
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i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and
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ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
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iii) which is to her detriment because she cannot comply with it.
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2(1) Section 1, and the provisions of Parts II and III relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite.
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(2) In the application of subsection (1) no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth.
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5(1) In this Act—
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(a) references to discrimination refer to any discrimination falling within sections 1 to 4; and
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(b) references to sex discrimination refer to any discrimination falling within section 1 or 2….
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(3) A comparison of cases of persons of different sex….under section 1(1)….must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
Section 6 is the first section in Part 2 of the Act. Section 6(2) provides:
"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her….
(b) by dismissing her, or subjecting her to any other detriment."
Ms. Webb's complaint is that EMO was in breach of section 6(2) in that it discriminated against her by dismissing her. That discrimination, she alleges, was either direct discrimination under section 1(1)(a) or indirect discrimination under section 1(1)(b).
The decision of the Industrial Tribunal
The IT decided that, as a matter of law, dismissal on the ground of pregnancy can, but does not necessarily, constitute direct discrimination within Section 1(1)(a) of the 1975 Act. I think it worth setting out the Tribunal's reasoning in full. Paragraphs 11 and 12 of its decision read:
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"11.…On the one hand we do not think…that dismissal for pregnancy cannot constitute discrimination. On the other hand, we do not think that dismissal for pregnancy can be ipso facto discrimination by virtue of Section 6(2)(b) and Section 1(1)(a) of the 1975...
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Table of cases
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