United Kingdom Employment Appeal Tribunal

Appeal Nos. UKEATS/0062/09/BI

UKEATS/0063/09/BI

 

 

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

 

 

                                                                                                                At the Tribunal

                                                                                                                On 6 July 2010

                                                                         

 

 

Before

THE HONOURABLE LADY SMITH

(SITTING ALONE)

 

 

 

 

 

MR ANDRIUS KULIKAOSKAS                                                                           APPELLANT

 

 

 

 

 

 

(1) MACDUFF SHELLFISH

(2) MR D WATT                                                                                              RESPONDENTS

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

                                              APPEARANCES

 

 

 

 

 

For the Appellant	MR BRIAN NAPIER QC (of Counsel) Instructed by: Ms Lynn Walsh Solicitor Equality and Human Rights Commission The Optima Building 58 Robertson Street Glasgow G2 8DU
For the Respondents	MR DAVID CHRISTIE (Solicitor) Proactive Employment Lawyers 7 Queens Gardens Aberdeen AB15 4YD

 

 

SUMMARY

UNFAIR DISMISSAL – Automatically unfair reasons

SEX DISCRIMINATION – Pregnancy and discrimination

 

Associative discrimination. Whether Employment Tribunal had erred in rejecting Claimant’s claim insofar as he alleged sex discrimination, the circumstances alleged being that he was dismissed because of the pregnancy of his partner (who was also dismissed).  On appeal, the Employment Appeal Tribunal held that the Employment Tribunal had not erred.  No relevant claim for associative discrimination existed in these circumstances and the matter did not require to be referred to the European Court of Justice.

 

 

 

THE HONOURABLE LADY SMITH

Introduction

1.            The Claimant, who is Lithuanian, was employed by the First Respondents as a general operator within their shellfish factory from 27 June 2009 and was dismissed from that employment less than a month later, as from 14 July 2009.  He alleges that his dismissal was because of his partner’s pregnancy.  She was employed by the First Respondents for the same period and has raised her own claim in which she alleges that her dismissal was because of her pregnancy.

 

2.            This is an appeal by the Claimant from the decision of the Employment Tribunal not to accept his form ET1 insofar as it contains a claim for sex discrimination.  That decision was intimated to Grampian Racial Equality Council (“Grampian”), who act for the Claimant, by letter dated 13 October 2009.

 

3.            By letter dated 27 October 2009, Grampian wrote to the Employment Tribunal seeking a review of its decision to refuse to accept part of the Claimant’s claim explaining:

 

“..his ET1 makes clear that his dismissal is of(sic) a consequence of the pregnancy of Ms Mihailova and his association to her and her sex which also makes his dismissal unfair as it is an act of unlawful discrimination. Therefore both cases should be accepted as submitted comprising unfair dismissal and discrimination on the grounds of sex.”

 

4.            By letter dated 10 November 2009, the Employment Tribunal responded refusing the application for a review.  The position, accordingly, remained that the Claimant’s claim that he had been discriminated against on grounds of sex was not allowed to proceed.  That that is the position was confirmed by the Employment Tribunal by letter of 24 June 2010.

 

 

Background

5.            According to his form ET1, the Claimant offers to prove that his dismissal was in response to his having advised his supervisor that his partner was pregnant, following an incident in which he was questioned as to why he was assisting her in lifting heavy weights in the factory.  The Respondents deny the claim and state, in their form ET3, that the Claimant was dismissed on grounds of capability/performance; he was not processing his work in the scallop department quickly enough.

 

6.            For the purposes of this appeal, matters of course require to be approached on the hypothesis that the Claimant’s allegation is well founded and will be established in evidence.

 

Current statutory provision

7.            The Claimant seeks to advance a claim under section 3A of the Sex Discrimination Act 1975 (“the 1975 Act”).  Its provisions, which came into force on 1 October 2005, insofar as relevant are:

 

“3A(1) …..a person discriminates against a woman if –

(a) at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably……”

 

8.            The “protected period” begins when the woman becomes pregnant and subsists throughout her pregnancy and maternity leave.

 

Relevant European legislation and case law

9.            Equality between men and women is one of the fundamental principles of EC law, as is evident from the terms of Article 2 and 3(2) of the EC Treaty.  Whilst a number of Directives concerning gender equality have been consolidated in No. 2006/54/EC (generally referred to as “the recast Directive”), in the light of the issue that arises in this appeal, it is important to consider the history behind what is now the well established principle that dismissal of a woman on grounds of her pregnancy constitutes unlawful sex discrimination.

 

10.         I turn first to Council Directive No.76/207 (repealed, insofar as then still subsisting, with effect from 15 August 2009) on equal treatment for men and women as regards access to employment.  Article 2.1 provided:

 

“…the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly…”

 

Article 2.7 provided:

 

“This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.”

 

And Article 5(1) provided:

 

“ …application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women are to be guaranteed the same conditions without discrimination on grounds of sex.”

 

11.         Secondly, I refer to Council Directive No 92/85/EC on the introduction of measures to encourage improvements in the safety and health of pregnant workers who have recently given birth or are breastfeeding (generally referred to as “the Pregnant Workers Directive”).  The sixth recital is as follows:

 

“ Whereas the Commission, in its action programme for the implementation of the Community Charter of the fundamental social rights of workers, has included among its aims the adoption by the Council of a Directive on the protection of pregnant women at work.”

 

The eighth recital includes:

 

“Whereas pregnant workers, workers who have recently given birth or who are breastfeeding must be considered a specific risk group….”

 

The fourth last recital includes:

 

“Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers,………; whereas provision should be made for such dismissal to be prohibited.”

 

and Article 10 of 92/85/EC includes:

 

“Prohibition of Dismissal

In order to guarantee workers…..the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that-

1. Member States shall take the necessary measures to prohibit the dismissal of workers….during the period from the beginning of their pregnancy to the end of …maternity leave………”

 

12.         Thirdly, I turn to the judgment of the European Court of Justice (“ECJ”) in Webb v EMO Air Cargo (UK) Ltd C-32/93 [1994] IRLR 482 ECJ in which it was established that the dismissal of a female employee for the reason that she is pregnant is contrary to Article 5(1) of Directive 76/207/EEC as it constitutes direct discrimination on grounds of sex; she need not, unlike others who claim they have been discriminated against, compare herself to any comparator.  At paragraph 20 -21, the Court explains:

 

“ 20. Furthermore, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with ‘pregnancy and maternity’, Article 2(3) of Directive 76/207 recognises the legitimacy , in terms of the principle of equal treatment, first, of protecting a woman’s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth….

21. In view of the harmful effects which the risk of dismissal may have on the physical and mental  state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, the Community legislature subsequently provided, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 ……………..for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave.”

 

13.         Fourthly, the terms of paragraphs 17 to 18 of the judgment of the ECJ in Brown v Rentokil C-394/96 [1998] IRLR 445 ECJ are in similar if not identical vein to the above passages from Webb v EMO and the ECJ adds a reference to the case of Hertz [1991] IRLR 31 where, at paragraph 15, the ECJ had pointed out:

 

“….that the Directive admits of national provisions guaranteeing women specific rights on account of pregnancy and maternity.”

 

These observations in 1998 confirm the appropriateness of the comments of Neill LJ when, in the case of Clark v Secretary of State for Employment [1996] IRLR 578, he observed, at p.74:

 

“Community law entitled Member States to make special provisions for women who are absent from work because of pregnancy or confinement. The provisions that are made then become a separate code. The code provides pregnant women with special protection………..their position cannot be ‘compared’ with that of a man or with that of woman in work.”

 

14.         Fifthly, I turn to Council Directive 2002/73/EC (superseded by the recast Directive), the amending Council Directive on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions.  Recital 12 included:

 

“12. The Court of Justice has consistently recognised the legitimacy in terms of the principle of equal treatment of protecting a woman’s biological condition during and after pregnancy.  It has moreover consistently ruled that any unfavourable treatment of women related to pregnancy or maternity constitutes direct sex discrimination.  This Directive is therefore without prejudice to Council Directive 92/85/EEC of 19 October 1992 ….”

 

15.         Sixthly, I turn to the recast Directive (2006/54/EC). Recitals 23 and 24 include the following:

 

“(23) It is clear from the case - law of the Court of Justice that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of sex. Such treatment should therefore be expressly covered by this Directive.

(24) The Court of Justice has consistently recognised the legitimacy, as regards the principle of equal treatment, of protecting a woman’s biological condition during pregnancy and maternity and of introducing maternity protection measures as a means to achieve substantive equality. This Directive should therefore be without prejudice to Council Directive 92/85/EEC of 19 October 1992 …….”

 

Article 1 provides:

 

“Purpose

The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation….”

 

and Article 2 includes the following:

 

“Definitions

1. For the purposes of this Directive, the following definitions shall apply:

(a) ‘direct discrimination’: where one person is treated less favourably on grounds of sex than another has been or would be treated in a comparable situation.

……………………………

2. For the purposes of this Directive, discrimination includes:

(a) ‘harassment and sexual harassment’, as well as any less favourable treatment based on a person’s rejection of or submission to such conduct;

(b) instruction to discriminate against persons on grounds of sex;

(c) any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC.”

 

16.         Lastly, I would observe that the protected characteristic of sex is not covered by the “Framework Directive” (2000/78/EC), the purpose of which is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation, as regards employment and occupation (Article 1).  Article 2 of the Framework Directive provides that the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds set out in Article 1 and then, in subparagraph (2) so far as direct discrimination is concerned, its provisions state:

 

“2. For the purposes of paragraph 1-

(a) direct discrimination shall  be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1.”

 

Coleman v Attridge Law [2008] IRLR 722 ECJ

17.         The background to and the nature of this judgment of the ECJ is now well known and can be briefly stated.  It concerned a claim of discrimination on the ground of disability where the disability in question was not that of the claimant but of her young son, of whom she was the principal carer.  She claimed that her employers had targeted her because of her son’s disability. The ECJ determined that the objects of the Framework Directive were such as to call for a broad approach even though it made no express reference to associative discrimination.  It considered that its objectives would be undermined if an employee in Mrs Coleman’s situation could not rely on the prohibition against direct discrimination on grounds of disability.  At paragraph 50, the ECJ said:

 

“ Although , in a situation such as that in the present case, the person who is subject to direct discrimination on grounds of disability is not herself disabled, the fact remains that it is the disability which, according to Ms Coleman, is the ground for the less favourable treatment which she claims to have suffered.” 

 

and they set out their decision at paragraph 56 in the following terms:

 

“ ….Directive 2000/78 and, in particular Articles 1 and 2(1) and 2(2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled.  Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).”

 

18.         That was against the background of the underlying principles being as discussed by the Advocate General (Poiares Maduro) who had, at paragraph 9 of his opinion, referred to the underlying principles of the Framework Directive being concerned with recognition of the worth of every individual and the ability of the individual to develop their “personal integrity and sense of dignity and self-respect” and at paragraph 14, of the potential that discrimination has for undermining the ability of those who come within the categories of characteristic protected by the Framework Directive to exercise their autonomy.

 

19.         There appears, accordingly, to be a strong sense of it being considered that unless it was held that a claim of associative discrimination was open to a person in Ms Coleman’s circumstances, there would be a risk of sanctioning what was, essentially, being presented as a lack of respect for one of the list of potentially vulnerable characteristics that the Framework Directive is designed to protect.  It is also of note that although the ECJ make the general statement that the prohibition of direct discrimination is not limited to people who are themselves disabled, when it comes to their decision in Ms Coleman’s case, they evidently considered it relevant to spell out not only that her claim was based on the disability of her child but that it was made in circumstances where she was his primary carer; that  nexus  between her and the needs that arose directly from the protected characteristic was evidently something that they considered to be of importance.  In her case, it appears that the less favourable treatment in question was liable to have a direct effect on her disabled child, that is, a direct effect on the vulnerability which the relevant anti- discrimination law is designed to protect.

 

The appeal

20.         For the Claimant, Mr Napier stated at the outset that the appeal concerned the reach of associative discrimination.  The sharp issue that arose was whether associative discrimination applies where one person suffers less favourable treatment because of the pregnancy of another person.  He submitted that it did apply and in support of that submission referred to the background and history of section 3A of the 1975 Act.  In doing so, he touched on the principle established in Webb v EMO and referred to the case of Brown v Rentokil.

 

21.         Mr Napier accepted that on a plain reading of section 3A of the 1975 Act, the Claimant had no case but that was not, he said, an end of matters.  The question then arose as to whether European law required that plain reading to be interpreted or extended.  In his submission, it did.  As in the case of Coleman v Attridge Law, there was nothing repugnant in the notion of section 3A applying to circumstances such as those of the Claimant.   The expression “on the ground of” as used in section 3A of the 1975 Act meant  “the reason why”, as was evident from the discussions of that phrase in EOC v Secretary of State for Trade and Industry [2007] IRLR 327, and English v Thomas Sanderson Ltd [2008] EWCA Civ 1421.  The phrase was not restrictive and it simply required the posing of the question: why was the treatment in question afforded to the Claimant?  Since the answer was because of his partner’s pregnancy, if established in evidence, that would be enough to show that there had been unlawful discrimination.

 

22.         Turning to the terms of the recast Directive (2006/54/EC), Mr Napier submitted that the terms of Article 2(2)(c) were such as to indicate that a broad based enquiry was envisaged.  The term used there was “related to” pregnancy, broader than “on the grounds of”.  That may well be so; I can accept that it will usually be appropriate to engage in a broad based enquiry as to the reason why a woman who claims that she had suffered a detriment on grounds of her pregnancy received the treatment in question.  Mr Napier did not, however, explain how that showed that her partner would also have a claim.  I did not see, from his argument, that breadth of enquiry as to the reason why a woman has received less favourable treatment pointed to it being necessary or legitimate to widen the category of protected victims so as to include her partner.

 

23.         Regarding the particular issue of whether the fact that the pregnancy in question is not that of the Claimant bars any claim, Mr Napier observed that the terms of Article 2(2)(c) were such as to indicate that not only should protection against discrimination be afforded to pregnant women but also to any same sex partner of a pregnant woman.  It was, he said, inconceivable that there was no intention that, similarly, a male partner would be protected.  Our domestic courts had, he submitted, had no problem with accommodating the concept of associative discrimination: Coleman, Showboat Entertainment Centre Ltd v Owens [1984] IRLR7, Saini v All Saints Haque Centre [2009] IRLR 74.  Whilst accepting that these authorities related to different statutes, the structure was, he submitted, essentially the same.  The same process of reasoning that achieved protection of the disabled person in Coleman could, he submitted, be applied in the present case.

 

24.         Mr Napier accepted that the only basis for reading associative discrimination into section 3A of the 1975 Act would be if European law required it.  He submitted that the wording of the relevant European legislation (76/207/EEC, 2002/73/EC, and 2006/54/EC) pointed to associative discrimination applying as much to sex as to disability, its application in the case of the latter having been confirmed by the decision of the ECJ in Coleman.  The wording which he proposed should be read into section 3A of the 1975 Act was by way of insertion of a new subsection 1A, as follows:

 

“(1A) A person also directly discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the pregnancy or maternity leave of another person.”

 

25.         Mr Napier referred to the Equality Act 2010, the relevant provisions of which are due to come into force on 1 October 2010.  Whilst it may be that they could be read as rendering dismissal of a person in the Claimant’s circumstances unlawful, that was not entirely clear and, further, there seemed to be no question of the statute having retrospective effect.  Accordingly, the possibility of associative discrimination becoming unlawful under the provisions of the 2010 Act was not relevant.

 

26.         Finally, Mr Napier recognised that a question might arise as to whether the issue that arose in this case ought to be the subject of a reference to the European Court of Justice but submitted that matters were acte clair and a reference was not, accordingly, appropriate or necessary.

 

27.         I was subsequently provided with a proposed question to be included if a reference was to be made:

 

“Does the definition of discrimination found in Article 2.2(c) of Directive 2006/54/EC extend to the situation where a man (“A”) receives less favourable treatment related to the pregnancy of a woman (“B”), in circumstances where A is associated with B?”

 

28.         For the Respondents, Mr Christie submitted that section 3A did not provide a remedy for associative discrimination nor were the provisions of the recast Directive (2006/54/EC) such as to indicate that it required to be read so as to afford it.  He referred to recitals 23 and 24 of 2006/54/EC and submitted that it was clear that it applied only to the pregnant woman.  Coleman did not affect the recast Directive.  It did not give rise to a recasting or amendment of it.  Nor did the case address the issue of discrimination on grounds of sex or pregnancy, which was a special case.  Pregnancy was a different category of protected characteristic and had been treated differently in the case law of the ECJ and in the relevant Directives.

 

29.         Mr Christie observed that Article 2(2) of the recast Directive involves a change in terminology from “person” to “woman” when it comes to referring to less favourable treatment in relation to pregnancy.  That was significant.  Women were put in a special category.  What the Claimant sought to do was not simply to add words to a UK statute but to add words to the relevant Directive as well.  That was not permissible.

 

30.         Mr Christie referred to the cases of J v DLA Piper UK LLP [2010] UKEAT/0262/09/RN and Aitken v The Commissioner of Police of the Metropolis [2010] UKEAT/0022/09/ZT as indicating that the reasoning in Coleman was not apt for extension by analogy.

 

31.         If there was to be a reference, Mr Christie questioned whether it was appropriate to do so on assumed facts.  As regards the Equality Act 2010 if it was to be read as providing the remedy sought by the Claimant, it was apparent that what had happened was that Parliament had decided to extend the protections afforded, after having considered Coleman.  The remedy sought by the Claimant did not exist in domestic law at the time of his dismissal and European law did not require that it did.  I was also provided with proposed questions for the Respondents, in the event that there was to be a reference:

 

“1. In the context of the  prohibition against dismissal of women on grounds of pregnancy, does the Directive only protect from direct discrimination women who are themselves pregnant?

 

2. Does the Directive protect employees who, though they are not themselves pregnant, are treated less favourably on the ground of their association with a person who is herself pregnant?

 

3. Where an employer treats an employee less favourably than he would treat other employees and it is established that the ground for the treatment is that the employee’s partner is pregnant, is that treatment direct discrimination in breach of the principle of equal treatment established by the Directive?

 

4. Does the equal treatment principle established by the Directive prohibit special protection for pregnant women which is limited in its scope to pregnant women?”

 

Discussion

32.         By way of preliminary, I would observe that it is plain that section 3A of the 1975 Act does not, on the face of it, prohibit an employer from affording less favourable treatment to a man on the ground of a woman’s pregnancy.  Thus if, for instance, the employer of a male teacher was dismissed on grounds of the pregnancy of a pupil with whom he had a sexual relationship, there would appear to be no question of it being held that he had been the victim of unlawful discrimination.  Similarly if, for instance, a priest was dismissed on grounds of the pregnancy of a nun with whom he had a sexual relationship, there would appear to be no question of it being held that he had been the victim of unlawful discrimination.  The employers in each case would, no doubt, be surprised to say the least to be told that they had discriminated against their employees, particularly since in such circumstances it is likely that their dismissals would be found to have been substantively fair.  These are, however, matters that would have to be revisited if the Claimant’s contention in this appeal is correct.  If he has a relevant case, it is difficult to see where a distinction could be drawn so as to exclude my examples of the teacher and the priest, particularly if Mr Napier’s proposed rewording of section 3A is acceded to.

 

33.         As to the suggestion that our domestic courts have had no problem in entertaining the notion of associative discrimination, the two cases to which Mr Napier referred each turned on an interpretation of the relevant statutory provisions.  They are not indicative of a general acceptance of an all encompassing principle of associative discrimination, which is what he seemed to suggest.

 

34.         I turn then to the central question of whether or not European law requires me to read section 3A so as to allow for the Claimant’s claim of associative discrimination.  The relevant protected characteristic is that of sex, in this case, the female gender.  If a woman is dismissed because she is a woman i.e. a man in her position would not have been dismissed, that amounts to direct discrimination under section 1 of the 1975 Act; the appropriateness of that prohibition is reflected in Article 5(1) of Directive 76/207.  There are, however, aspects of the female gender which are not replicated in the male.  One is the ability to bear children and that is something which has given rise to specific consideration in the European legislation and case law, as summarised above.  The history shows that years ago, a concern arose and has since subsisted that, if a woman is dismissed because she is pregnant, that could have a harmful effect on her “biological condition”, it could damage her physical state, it could damage her mental state, and it could cause her to decide to have an abortion.  That is, the focus of the concern was the risk of a particular type of harm to a woman in her pregnant state (and in its immediate aftermath) and to the foetus. None of the recitals, Articles of Directives, or judicial discussion in which the matter is discussed, indicate a concern that absent special protection of a woman’s pregnant status, there would be a wider risk of unequal treatment, lack of respect for the female gender or, more generally, compromise of a woman’s autonomy.  Rather, the approach would appear to have been to identify a feature that is unique to women, recognise that it is deserving of and requires special protection because of the risks specified above and to provide that, without the need for any comparison, certain specified forms of treatment of women when in the uniquely female state of pregnancy will amount to direct discrimination on grounds of sex.

 

35.         To put it another way, as Neill LJ put it in the case of Clark v Secretary of State for Employment, what has emerged is a separate code that deals with pregnancy and maternity.

 

36.         The approach of the ECJ in Coleman is understandable as being motivated by a concern to secure the autonomy and protection from disadvantage of certain vulnerable groups, namely those which have the particular characteristics specified in the Framework Directive. In Coleman, the particular vulnerability in question was that of disability. Evidently the ECJ considered there was a risk of failing to achieve the objective of the Directive if associative discrimination was not allowed for and it is understandable why they considered that to be so in the particular circumstances of Ms Coleman’s case.  Mr Napier, in essence, urged me to conclude that it would be bound to adopt the same approach in the present case.  I accept that it is plainly authority for the proposition that in a disability discrimination claim, the facts may support a claim of unlawful discrimination being advanced by someone other than the disabled person.  As to how much further it extends,  I do not propose to offer a view since, as I explain below, I do not consider it supports the relevance of the Claimant’s case and that is as far as I require to go for the purposes of this appeal.

 

37.         I consider that there are important points of distinction between the circumstances in Coleman and the present case.  The first is that this is not a Framework Directive case. It concerns the Pregnant Workers’ Directive and the recast Directive and the history of those Directives, together with the judicial consideration of the reason for affording special protection to pregnant workers (as referred to above), show matters in a rather different light.  Secondly, whilst a literal reading of Article 2(2)(c) of the recast Directive might suggest that the definition of discrimination is such as to afford protection to the same sex partner of a pregnant worker and that might make it seem odd if her male partner was not similarly protected, I am not persuaded that that is what is intended.  The history of the Directive shows that the focus came to be on a particular aspect of the female gender and a means was long ago found of protecting it, which included holding that dismissal of a woman by reason of her pregnancy constituted direct discrimination.  There is no indication of a continuing concern that more may need to be done to secure that protection, unlike the position with disability discrimination, for the reasons discussed in Coleman.  Thirdly, the fact that a distinction is drawn between “persons” who are protected in terms of Article 2(2)(a) and (b) and “woman” in Article 2(2)(c) is, I accept, of some significance.  It would have been a simple matter to provide that discrimination covered any less favourable treatment of “persons in relation to a woman’s pregnancy” if that was what had been intended.  The wording used is in contrast to the broader wording of Article 2((a) of the Framework Directive.  Fourthly, it seems to me to be clear that the recast Directive calls for Member States to see to it that women continue to be afforded the special protections in relation to pregnancy that have, over the years, been identified as necessary (including a prohibition against dismissing a woman on grounds of her pregnancy) but does not go further than that.  That is understandable.  The circumstances are not indicative of a concern that respect for the protected characteristic (being of female gender) or the personal autonomy of the female are liable to be diminished if there is nothing other than direct protection of the woman (by affording her the specified pregnancy and maternity rights).  Rather, these are specific steps identified as appropriate to protect the pregnant woman and the foetus from actual harm, that being what the European Court of Justice and legislature has repeatedly identified as being the relevant need.  I am not, in short, persuaded that it can be concluded that it is clear that the ECJ would hold that the Claimant has a relevant claim for associative discrimination.

 

38.         I consider next whether the relevant European law is such as to give rise to a reasonable doubt about the correct interpretation of section 3A of the 1975 Act. I have given careful consideration to the matter but have reached the conclusion that it is not, for the reasons I have set out above.  It seems to me that the law is clear and I do not propose to make a reference to the European Court of Justice. The intention of the section is to provide expressly for a means of achieving equal treatment in circumstances where the biological conditions of men and women are unequal in the sense that it is only women who bear the physical burden of pregnancy.  It is not concerned with the wider objective of promoting conduct that secures the autonomy of women or respect for their gender; it is section 1 which deals with that objective.  So far as men are concerned, both the European and domestic legislature have given consideration to whether the objective of the protection of women during pregnancy and maternity gives rise to the need for any related special entitlements and so it is that paternity leave, stated as being solely for the purpose of  enabling the new father to care for the child or support the mother, that is for their benefit, not for his, has been provided for (recast Directive, Article 16; Employment Rights Act 1996 s.80A; Paternity and Adoption Leave Regulations 2002 SI 2002/2788). No further protection is afforded nor does any appear to be seen as required.

 

Disposal

39.         In these circumstances, I will pronounce an order dismissing the appeal and remitting the claim to the Employment Tribunal to proceed as accords.