Webb v Emo Air Cargo (UK) Ltd (Case C-32/93)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Griffiths,Lord Browne-Wilkinson,Lord Mustill,Lord Slynn of Hadley |
| Judgment Date | 19 October 1995 |
| Judgment citation (vLex) | [1992] UKHL J1126-1 |
| Date | 19 October 1995 |
| Court | House of Lords |
[1992] UKHL J1126-1
House of Lords
Lord Keith of Kinkel
Lord Griffiths
Lord Browne-Wilkinson
Lord Mustill
Lord Slynn of Hadley
My Lords,
This appeal involves a difficult and interesting question in the field of sex discrimination, namely whether an employer is guilty of such discrimination, direct or indirect, when he dismisses a female employee, shortly after engaging her, on learning that she is pregnant and therefore will not be available for work at the time when the task for which she was specifically recruited falls to be performed.
The facts of the case are stated in the decision of the Industrial Tribunal, the appellant, Ms. Webb, being there described as "the applicant" and the employers, EMO Air Cargo (U.K.) Ltd., ("EMO") as "the respondents". their managing director being Mr. Fullicks. The statement of facts is as follows:
"The applicant was engaged by the respondents by a letter of 26 June 1987 as an Import Operations Clerk, subject to a three months probationary period. She started work on 1 July 1987. The respondents have 16 employees (male and female), four of whom are in the Import Department. At her interview, the applicant was told that the job was available because another of the Import Operations Clerks (Valerie Stewart) was pregnant. Valerie Stewart intended to work until the end of the year and to return after maternity leave. That the applicant needed about six months' training from Valerie Stewart so as to be able to replace her. Valerie Stewart's baby was due on 16 February 1988. The return of Valerie Stewart would not mean that the applicant would have to leave. About two weeks after starting work, the applicant thought she herself might be pregnant and told Valerie Stewart. The applicant had no such suspicion at the start of her employment. This matter came to the ears of Mr. Fullicks who called the applicant to his office the following day. The applicant said she thought she was pregnant, but was not sure. Mr. Fullicks told her that he had no alternative but to dismiss her, but she could choose whether to leave that day or at the end of the month. Having chosen the latter, she received a letter dated 30 July 1987 on 30 July, stating '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 applicant's employment thereupon terminated. Her pregnancy was in fact confirmed during the week after the meeting with Mr. Fullicks. She did not tell Mr. Fullicks of the confirmation, but we consider that nothing turns on this. The applicant's confinement is expected on 8 March 1988. The applicant would have liked to have been able to return to work with the respondents."
The Tribunal went on to find 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. Male and female employees were treated alike. In one instance a female employee had two to three months sick leave in hospital on full pay, and ordinarily the position would be the same for one having a baby, resulting in three months absence, but the appellant was engaged to take the place of Valerie Stewart during the latter's absence due to pregnancy. If the appellant had said at her initial interview that she might be pregnant she would not have been offered the job.
The appellant's claim that her dismissal constituted direct discrimination against her on the ground of her sex, or alternatively indirect discrimination, contrary to the Sex Discrimination Act 1975, was dismissed by the Tribunal. It held that the real reason for the dismissal of the appellant was her anticipated inability to carry out the primary task for which she had been recruited, namely to cover the job of Valerie Stewart during the latter's absence on maternity leave, and that a man recruited for the same purpose would have been treated similarly if he had declared that he required to be absent during the critical period.
Appeals by the appellant to the Employment Appeal Tribunal and from it to the Court of Appeal (Glidewell, Balcombe and Beldam L.JJ.) were unsuccessful. She now appeals to your Lordships' House with leave granted by the Court of Appeal.
The immediately relevant provisions of the Act of 1975 are these:
Section 1(1)
"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if —
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or
(b) he applies to her a requirement or condition which he applies or would apply equally to a man but —
(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
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
(iii) which is to her detriment because she cannot comply with it."
Section 2
"(1) Section 1, and the provisions of Parts II and III relating to sex discrimination against women, are to read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite.
(2) In the application of subsection (1) no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth."
Section 5
"(1) In this Act —
(a) references to discrimination refer to any discrimination falling within sections 1 to 4; and
(b) references to sex discrimination refer to any discrimination falling within section 1 or 2,
and related expressions shall be construed accordingly.
(2) ….
(3) A comparison of the cases of persons of different sex or marital status under section 1( 1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
Section 6(1)
"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman —
….
(c) by refusing or deliberately omitting to offer her that employment."
Section 6(2)
"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."
The appellant's case alleges direct discrimination contrary to sections 1(1)(a) or alternatively indirect discrimination contrary to sections 1(1)(b). It is the case on direct discrimination which poses the really difficult problem. Section 1(1)(a) requires a comparison to be made between the treatment accorded to a woman and the treatment accorded or that would be accorded to a man. Here there is no treatment actually accorded to a man which can be the subject of comparison. So it is necessary to consider what treatment would be accorded to a man, and under section 5(3) it is necessary to assume that the relevant circumstances in the case of the hypothetical man are the same as or not materially different from the circumstances in which the treatment complained of was accorded to the woman. What in this case are the relevant circumstances which are to be assumed to be present in the case of the hypothetical man? Obviously they cannot include the circumstance that the man is pregnant, for that is impossible. This led a majority of the Employment Appeal Tribunal in Turley v. Allders Department Stores Ltd. [1980] I.C.R. 66 to hold that dismissal of a woman on the pure ground of pregnancy could not constitute unlawful discrimination, comparison with a man who was in like position being impossible. Ms. Pat Smith dissented, taking the view that the proper course was to compare the position of a pregnant woman with that of a man who by reason of some medical condition required a period off work equivalent to what a woman would require for her confinement. In Hayes v. Malleable Working Men's Club and Institute [1985] I.C.R. 703 an Employment Appeal Tribunal differently constituted upheld the dissenting opinion of Ms. Smith in Turley's case. The Court of Appeal followed the same line in the present case. Glidewell L.J. said ( [1992] 2 All E.R. 43, 52):
"To postulate a pregnant man is an absurdity, but I see no difficulty in comparing a pregnant woman with a man who has a medical condition which will require him to be absent for the same period of time and at the same time as does the woman's pregnancy."
There can be no doubt that in general to dismiss a woman because she is pregnant or to refuse to employ a woman of child bearing age because she may become pregnant is unlawful direct discrimination. Child-bearing and the capacity for child-bearing are characteristics of the female sex. So to apply these characteristics as the criterion for dismissal or refusal to employ is to apply a gender-based criterion, which the majority of this House in James v. Eastleigh Borough Council [1990] 2 A.C. 751 held to constitute unlawful direct discrimination. In that case the council had adopted the attainment of pensionable age, 65 for men and 60 for women, as the condition for being eligible for free use of their swimming pool. In the present case, however, there was not any direct application of a gender-based criterion. If the appellant's expected date of confinement had not been so very close to that of Valerie Stewart she would not have been dismissed. It was her expected non-availability during the period when she was needed to cover for Valerie Stewart which was the critical factor. The question is whether it is legitimate to make a...
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