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EU Directives and Case Law on Pregnancy Discrimination in Employment

The principal EU directive on the issue is the EU Pregnant Workers Directive 92/85/EEC of 19 October 1992, which provides certain rights to women workers who have recently given birth or are breastfeeding (Council, 1992). The Directive considers pregnant women workers or women who have recently given birth as a risk group, which must be given access to special measures (Council, 1992). As per Article 2 (a) of the Directive, a pregnant woman is the person who informs her employer about her condition (Council, 1992). Under Article 2(b) and (c), a woman who has recently given birth or is breastfeeding is to be considered so as per the national legislation (Council, 1992). Therefore, the national law is applicable for computing the period for the purposes of this Directive.

Maternity leave of at least 14 weeks and as per the national legislation is provided under Article 8 of the Directive (Council, 1992). There is a prohibition of dismissal during the period of beginning of pregnancy to the maternity leave under Article 12. The principle of equality is applicable as between men and women workers, and in that regard it is pertinent to note the Recast Directive 2006/54/EC (Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation). Equality between men and women is a fundamental principle of EU law. In the UK, the Equality Act 2010, also prohibits direct sex discrimination, which occurs if the employer treats the employee or worker less favourably due to the gender. In particular, if the worker is pregnant or on maternity leave, less favourable treatment will lead to direct sex discrimination.

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The European Court of Justice has held that pregnancy discrimination is direct discrimination in Jiminez Melgar case which related to non-renewal of the fixed term contract (Jiminez Melgar v Ayuntamiento de Los Barrios, [2001] IRLR 848 , 2001). As per the decision of the court, even if the woman is employed under a fixed term contract, she should not be dismissed or denied refusal of extension of contract once she becomes pregnant.

In an important case, Tele Danmark A/S case, it was held that dismissal of a worker who was employed on a fixed term contract of six months, when she became pregnant, was unjustified even on the ground that the dismissal was not by reason of her pregnancy, but due to her inability to perform her duties (Tele Danmark A/S v Handels-Og Kontorfunktionaerernes Forbund I Danmark (HK) on behalf of Brandt-Nielsen, [2001] IRLR 853, ECJ, 2001). In this case, the employee had joined the service knowing that she was pregnant and would not be able to perform the substantial part of her duties under the fixed term contract. Nevertheless, the employer was not allowed justification for dismissal (Smith & Baker, 2015, p. 313).

An important point made by the European Court of Justice in Handel-Og case, where the court held that the employer may have regard to periods of absence due to pregnancy related illness outside the maternity leave period in calculating the grounds of dismissal, provided it is the same that the employer would have done for a male employee (Handel-og Kontorfunktionaernes Forbund i Danmark (for Larsson) v Dansk Handel and Service (for Fotex Supermarked A/S, [1997] IRLR 643 ECJ, 1997). However, in Brown v Renkokil Ltd, the European Court of Justice has held that it would be unlawful for the employer to take into account leave of absences between the period of pregnancy and maternity leave period (Brown v Renkotil Ltd, [1998] ICR 790, 1998). However, this only applies till the end of maternity leave period. The employer’s computing of dismissal on the basis of absence after that period of time will not be considered as pregnancy discrimination. At this time, the comparative approach applies, where if the dismissal of the woman employee for leave of absences is the same as it would be for a male employee, then it is not discriminatory (Smith & Baker, 2015, p. 315). This is as per the decision of the court in British Telecommunications case (British Telecommunications v Roberts, [1996] IRLR 601, 1996). It is noteworthy that while making the comparison between female and male employees, the period of absence from the start of the pregnancy to the end of the maternity leave will not be taken into account (Smith & Baker, 2015, p. 315).

Advice on Revocation of Offers to Sarah Dickens and Margaret Worthing

With respect to Sarah Dickens, as per the judgement of the European Court of Justice in (Tele Danmark A/S v Handels-Og Kontorfunktionaerernes Forbund I Danmark (HK) on behalf of Brandt-Nielsen, [2001] IRLR 853, ECJ, 2001), Sporting Chance cannot now revoke the contract that was offered to her. Revocation of the contract will not be justified on the ground that she will not be able to work for a substantial period of the contract and will still attract direct discrimination on the part of the employer. As far as pregnancy discrimination is concerned, no difference will be made on the claims of Sarah Dickens just because she is employed under a fixed term contract as per the decision of the European Court of Justice (Jiminez Melgar v Ayuntamiento de Los Barrios, [2001] IRLR 848 , 2001). It is advised that Sporting Chance should not revoke the contract of employment as that would amount to violation of EU law.

With respect to Margaret Worthing, her leave of absences due to pregnancy related illnesses, if computed outside the period of pregnancy to end of maternity leave is substantial. By applying comparative approach, a male employee with substantial leave of absence, would have been liable to be dismissed. Margaret’s dismissal therefore would not amount to pregnancy discrimination (Brown v Renkotil Ltd, [1998] ICR 790, 1998). Sporting Chance is advised that they may compute the period of absence after the end of maternity leave for the purpose of justification of dismissal.

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References

  • Council, E., 1992. Council Directive 92/85/EEC, s.l.: Official Journal of European Communities.
  • British Telecommunications v Roberts, [1996] IRLR 601 (1996).
  • Brown v Renkotil Ltd, [1998] ICR 790 (1998).
  • Handel-og Kontorfunktionaernes Forbund i Danmark (for Larsson) v Dansk Handel and Service (for Fotex Supermarked A/S, [1997] IRLR 643 ECJ (1997).
  • Jiminez Melgar v Ayuntamiento de Los Barrios, [2001] IRLR 848 (2001).
  • Masselot, A., Torella, E. C. D. & Burri, S., 2012. Fighting Discrimination on the Grounds of Pregnancy, Maternity and Parenthood: The application of EU and national law in practice in 33 European countries, s.l.: European Commission.
  • Tele Danmark A/S v Handels-Og Kontorfunktionaerernes Forbund I Danmark (HK) on behalf of Brandt-Nielsen, [2001] IRLR 853, ECJ (2001).
  • Smith, I. & Baker, A., 2015. Smith & Wood's Employment Law. Oxon: Oxford University Press.

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