United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR S BLOCH (of Counsel) Messrs Osborne Clarke Solicitors Hillgate House 26 Old Bailey London EC4M 7HS
For the Respondent	MR G MILLAR (of Counsel) Messrs Lawford & Co Solicitors 102-104 Sheen Road Richmond Surrey TW9 1UF


 


JUDGE PUGSLEY: This is an appeal from the Employment Tribunal sitting at Ashford. It raises an issue of real importance to female seafarers since it is common ground between the parties that female seafarers cannot rely on the provisions of section 66-68 of the Employment Rights Act 1996 which deals with suspension on maternity grounds. Suspension on maternity grounds under the Employment Rights Act 1996 arises if a new or an expectant mother is suspended from work pursuant to the powers contained in the health and safety legislation. She must be offered suitable alternative employment and if that is not available she is entitled to be paid during the period of her suspension. If she unreasonably refuses to take such alternative employment she forfeits the right to remuneration. The position of seafarers is governed by the Merchant Shipping (Medical Examination) Regulations 1983 (SI 1983 No. 808) and the Merchant Shipping Notice M 1331. The Department of Transport has prescribed certain medical standards for seafarers on United Kingdom ships. The M Notice specifies that in the case of a pregnant employee she shall not be employed on such ships after the 28th week of pregnancy and at least six weeks after delivery. In order that the position of the pregnant employee is placed in context it should be noted that the M Notice covers a wide range of medical conditions affecting seafarers generally.

It is common ground that these provisions prevented Mrs Iverson from working on the ship after the 13th April 1997. On the 10th April Mrs Iverson had a meeting with Mr Ambrose. She refused to sign a maternity leave form which had been prepared and which had as its starting day for maternity leave the 12th of April. Mrs Iverson did not wish to start her maternity leave until the 1st June 1997. Mrs Iverson made it clear at that meeting she was not prepared to take a short based job unless it was comparable with her existing position. She was then placed on authorised unpaid leave. She refused various jobs which had salaries in the range of £9,000 to £10,000. On board she had been employed as a Foreign Exchange Cashier and her salary was just under £20,000 per year.

In a careful and comprehensive decision the tribunal rejected the applicant's contention that she had a contractual or statutory right to be paid. The respondent's appeal against the finding that she had no contractual right to be paid has been abandoned before us.

In paragraph 11 of its decision the tribunal set out the applicant's terms and conditions in relation to sick pay. The tribunal decided that had the applicant been suspended from work due to any of the other medical conditions set out in the M Notice then she would have received full pay during the period of her medical suspension. All the conditions with the exception of pregnancy contained in the M Notice can be construed as entitling as causing inability to work on a ship because of sickness or injury. (See paragraph 11).

After reviewing the various authorities the tribunal sum up its position in paragraph 22:

"... We have concluded that, where a suspension of a pregnant employee occurs because of a statutory provision which also requires a non-pregnant employee with certain medical conditions to be suspended from work, then a practice by an employer of paying the non-pregnant employees suspended under that provision full pay, whilst paying the pregnant employee less than full pay or nothing, must amount to direct discrimination on the grounds of sex."

Mr Bloch, who appears for the appellant employer, seeks to assail that decision in a careful and measured argument before us. To those familiar with the tortuous route by which the present state of the law relating to pregnancy has been arrived at it is no surprise that the fundamental objection which Mr Block makes is that the tribunal relied on an impermissible comparison between pregnancy and illness. He cites Webb v EMO Air Cargo [1994] ICR 770 ECJ at 779:

"There can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovery very shortly after the commencement of the employment contract, or performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons ... pregnancy is not in any way comparable with a pathological condition, and even less so with unavailability for work on non-medical grounds, both of which are situations which may justify dismissal of a woman without discrimination on grounds of sex."

Mr Bloch cited a number of decisions which demonstrate this central point: Gillespie v Northern Health and Social Services Board [1996] IRLR 214; Iske v P & O [1997] IRLR 401; O'Neill v Governors of St Thomas More RCVA Upper School [1996] IRLR 372 and Brown v Rentokil [1998] IRLR 445.

We hope that we are not doing an injustice to Mr Bloch's careful argument to say that we consider it unnecessary to cite dicta from those various decisions because we accept that there is a strong body of authority for this central proposition that pregnancy cannot be compared with illness. The uniqueness of pregnancy invalidates any such comparison.

Mr Bloch points out that in Iske v P & O at paragraph 28 His Honour Judge Peter Clark was careful to make the point that in relying on the fact that unfit men were offered alternative work (in contrast with Mrs Iske) it was not making a comparison between unfit men and pregnant women; rather it was using the difference in treatment to draw the inference that it was Mrs Iske's pregnancy which led to her not being offered shore based work, a fact which was in issue in that case but not in this case.

The second argument which Mr Bloch advances is that a distinction is to be drawn between disparate treatment whilst at work and whilst subject to maternity leave and he points to those authorities which show that the courts have rejected the suggestion that women have a right to be treated with strict comparability when they are not at work. He cites Gillespie v Northern Health and Social Services Board in which it was held that a reduction in pay during maternity leave was not sex discrimination for the proposition set out in the Advocate General's opinion adopted by the Court that:

"it would be incorrect, in legal terms, to attempt to compare the situation of a man at work with that of a woman on maternity leave."

He had referred us to the case of Boyle v Equal Opportunities Commission Case C - 411/96 and in particular paragraphs 39 and 42:

"39. Furthermore, it is common settled case law that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (see the judgment in Gillespie and others cited above ... and Schumaker [1995] ECR 1 - 225.)

42. A clause in an employment contract which makes the application of a more favourable set of rules than that prescribed by national legislation conditional on the pregnant woman, unlike any worker on sick leave, returning to work after childbirth, failing which she must repay the contractual maternity pay in so far as it exceeds the level of the statutory payments in respect of that leave therefore does not constitute discrimination on that grounds of sex for the purposes of Article 119 of the Treaty and Article 1 of Directive 75/117."

The third argument advanced by Mr Bloch is that as a matter of causation it cannot be said that pregnancy was the reason for the unpaid authorised leave. The statutory prohibition and the inability to find a comparably paid shore job were the context in which Mrs Iverson's refusal to accept a lesser paid job meant she was placed on authorised unpaid leave. It was her refusal which constituted the effective and predominant cause of what amounted to her unpaid leave. He points out that in Iske at 401 the Employment Appeal Tribunal concluded that:

"If no work had in fact been available, as the respondent contended, it would be open to the tribunal to conclude that that was a reason for not offering the applicant short work, not pregnancy."

Mr Bloch's overriding submission is that the tribunal imposed on the respondents a burden which they were not required to shoulder by either European or United Kingdom law. Whilst European law extends protection in relation to dismissal or refusal to employ by reason of pregnancy (as in Habermann-Beltermann v Aebeiterwohlfarht, Bezirksverband [1994] IRLR 364 it does not require an employer to maintain full pay throughout pregnancy. (Gillespie's case and Boyle's case.)

Mr Bloch points out that the requirement to pay a woman the rate for a job which she was not there to perform was not adopted by the Council under Article 11 of the Pregnant Worker's Directive and the provision of the Employment Rights Act 1996 do not incorporate the regulations with which we are concerned. He submits that where the reason for absence from work is due to a statutory prohibition this is to be equated with the position under maternity leave and to found a duty on a comparison with P & O's sick pay scheme is to fall into the trap of comparing the application of different rules to different rather than comparable situations. We ought to say that we do not attach any importance to the point made that at one stage Mr Millar in his skeleton argument seemed to be in agreement with him; tribunals are not bound by the arguments put to them.

Central to Mr Bloch's submission is his contention that the position of a pregnant woman is sui generis; that a sick worker is not a suitable comparator for the purposes of negating discrimination; nor can a sick worker be a comparator for the purposes of establishing discrimination.

Mr Millar accepts that the uniqueness of pregnancy invalidates glib comparisons between illness and pregnancy but he submits that it is wholly artificial to attempt to isolate the position of how the medically incapacitated worker is treated. He points out that the stream of authority flowing from Webb does not mean that a court/tribunal can never find a comparable situation involving a sick worker provided that there is a truly comparable situation. He relies on Handel Petersen Case C - 66/96. In that case although the judgment acknowledges that the Webb principle that "pregnancy is not in any way comparable to a pathological condition" (para. 33) it nevertheless went on to consider the position of the worker absent for a reason connected with pregnancy in the context of the sick worker. It found that the denial of full pay where the pregnant worker was suffering from a pregnancy related illness was discriminatory as "treatment based essentially on pregnancy". It was assisted in reaching this finding by the contrast with the sick/absent worker on full pay (para. 34). The laws permitting the denial of full pay to the pregnant worker were found to breach Article 115.

Conclusion

Ultimately, we consider that despite the most able argument advanced by Mr Bloch, it is fundamentally flawed. It confuses means with ends; the route with the destination. The issue for the tribunal was whether there had been sex discrimination. This is a question which had to be decided in the context of the factual matrix of this particular case. An approach and perspective which might be a useful navigational aid in one case can be a stumbling block if applied to the case with different features. There may be more than one route to the same destination. In the mists of legal sophistry the unwary may confuse one possible route with the ultimate destination.

Parliament has decreed that due to the particular exigencies of maritime life those with certain medical conditions are precluded from going to sea. An examination of the particular provisions shows that it includes a wide range of conditions of which pregnancy is but one. Under the contractual provisions in all save pregnancy the condition is equated with sickness for the purpose of determining whether there is an entitlement to be paid in full. Of all the conditions which are included in the prohibited, why, we have asked ourselves, should pregnancy alone not give an entitlement to be treated as though qualifying under the sick pay scheme? What possible explanation or justification can there be other than sex discrimination for imposing this detriment on pregnant women? This is not a case of maternity leave; we do not accept that we can equate the period prior to maternity leave with maternity leave itself.

Despite Mr Bloch's submission, we consider we are assisted by the broad approach to causation in O'Neill. We have considered this case in the light of the guidance given by Mummery J in O'Neill v Governors of St Thomas More RCVA Upper School at 376. After pointing out that the applicant's pregnancy was not to be treated by the comparison of her treatment with that of a hypothetical male comparator (in the context of that case a male teacher of religious education and personal standards who had fathered a child by a Roman Catholic nun) the judgment went on to point out that a dismissal on grounds of pregnancy was a dismissal on grounds of sex and that the critical question was whether the applicant's constructive dismissal was on grounds of pregnancy or some other ground. This required an analysis of the principles of causation. The position was summed up in the judgment at 376 para. 39:

"What are the correct principles of causation?

(a) It is established by the authority of the House of Lords that the test to be applied in determining whether treatment is directly discriminatory on the ground of sex is not one of subjective mental processes of the respondents i.e. as to their intention, motives, belief or subjective purposes. Those considerations may be relevant to remedies for discrimination, but they are not relevant to liability. A condition of liability in the expression 'the ground of her sex' is an objective test of causal connection. According to the House of Lords the relevant question is:

'Would the applicant have received the same treatment but for her sex?'

See James v Eastleigh Borough Council [1990] IRLR 288 at paragraphs 11. 30 and 39.

(b) In answering that causation question regard must be had to the well established and uncontroversial legal principles recently discussed by the Court of Appeal in Banque Bruxelles v Eagle Star Insurance [1995] 2 WLR 607 at 620 and 621. Although the case was not cited to us in argument in this appeal, there can be no doubt that the principles discussed in that passage are beyond controversy at this level of decision. The relevant principles are these:

(i) The tribunal's approach to the question of causation should be:

'... simple, pragmatic and commonsensical.'

(ii) The question of causation has to be answered in the context of the decision to attribute liability for the acts complained of. It is not simply a matter of factual, scientific or historical explanation of a sequence of events, let alone a matter of philosophical speculation. The basic question is: what out of the whole complex of facts before the tribunal, is the 'effective and predominant cause' or the 'real and efficient cause' of the act complained of? As a matter of common sense not all the factors present in a situation are equally entitled to be treated as a cause of the crucial event for the purposes of attributing legal liability for consequence.

(iii) The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of (though it must provide more than just the occasion for the result complained of)

... It is enough if it is an effective cause." 621

The definition of discrimination as involving the application of different rules to comparable situations or the application of the same rules to different situations, although cited by Mr Bloch, in our view assists Mrs Iverson in this case. We consider the tribunal was entitled to approach the matter in the way they did in paragraph 22 when they concluded that where a statutory provision also requires non-pregnant employees with certain medical conditions to be suspended, the practice by an employer of paying the non-pregnant employees suspended under the provision full pay, whilst denying that advantage to the pregnant employee is direct discrimination. We consider that applying the guidance laid down by Mummery J the tribunal was entitled to consider Mrs Iverson's pregnancy as the causative factor. It may be that Mrs Iverson's refusal to accept any employment may be relevant to the question of mitigation of damages (though that is a matter for the tribunal considering remedy and not for us.)

In this case we consider that the tribunal in its reasoning had a homing instinct for the relevant issues. We consider there was no error of law and we therefore dismiss the appeal.