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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Webb v EMO Air Cargo (UK) Ltd (No.2) [1995] UKHL 13 (19 October 1995)
URL: http://www.bailii.org/uk/cases/UKHL/1995/13.html
Cite as: [1996] 2 CMLR 990, [1995] IRLR 645, [1995] WLR 1454, [1998] RTR 111, [1995] UKHL 13, [1995] 4 All ER 577, [1995] ICR 1021, [1995] 1 WLR 1454
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JISCBAILII_CASE_EMPLOYMENT
[1995] UKHL 13
Date: 19 October 1995
Lord Keith of Kinkel
Lord Griffiths
Lord Browne-Wilkinson
Lord Mustill
Lord Slynn of Hadley
LORD KEITH OF KINKEL
My Lords
The circumstances of this case are set out in the report of the earlier proceedings in your Lordships' House, particularly in the speech which I delivered on 26 November 1992: ([1993] ICR 175, [1993] 1 WLR 49).
"For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.
"Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex."
"Is it discrimination on grounds of sex contrary to Directive (76/207/E.E.C.) for an employer to dismiss a female employee ('the applicant' (a) whom he engaged for the specific purpose of replacing (after training) another female employee during the latter's forthcoming maternity leave, (b) when, very shortly after appointment, the employer discovers that the applicant herself will be absent on maternity leave during the maternity leave of the other employee, and the employer dismisses her because he needs the job-holder to be at work during that period, (c) had the employer known of the pregnancy of the applicant at the date of appointment, she would not have been appointed, and (d) the employer would similarly have dismissed a male employee engaged for this purpose who required leave of absence at the relevant time for medical or other reasons?"
"24. First, in response to the House of Lords' inquiry, there
can be no question of comparing the situation of a woman who finds
herself incapable, by reason of pregnancy discovered very shortly after
the conclusion of the employment contract, of performing the task for
which she was recruited with that of a man similarly incapable for
medical or other reasons.
"25. As the applicant rightly argues, 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 that may justify the dismissal of a woman without discriminating on grounds of sex. Moreover, in Handels-og Kontorfunktioncerernes Forbund i Danmark v. Dansk Arbejdsgiverforening (Case C-179/88) [1992] ICR 332, the court drew a clear distinction between pregnancy and illness, even where the illness is attributable to pregnancy but manifests itself after the maternity leave. As the court pointed out, at paragraph 16, there is no reason to distinguish such an illness from any other illness.
"26. Furthermore, contrary to the submission of the United Kingdom, dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the Directive.
"27. In circumstances such as those of the applicant, termination of a contract for an indefinite period on grounds of the woman's pregnancy cannot be justified by the fact that she is prevented, on a purely temporary basis, from performing the work for which she has been engaged: see Habermann-Beltermann v. Arbeiterwohlfahrt, Bezirksverband Ndb./Opf. eV (Case C-421/92) [1994] 2 C.M.L.R. 681, 695, para. 25, and paragraphs 10 and 11 of the Advocate General's opinion in this case, ante, pp. 740D-741E.
"28. The fact that the main proceedings concern a woman who was initially recruited to replace another employee during the latter's maternity leave but who was herself found to be pregnant shortly after her recruitment cannot affect the answer to be given to the national court.
"29. Accordingly, the answer to the question submitted must be that article 2(1) read with article 5(1) of Directive (76/207/E.E.C.) precludes dismissal of an employee who is recruited for an unlimited term with a view, initially, to replacing another employee during the latter's maternity leave and who cannot do so because, shortly after recruitment, she is herself found to be pregnant."
It is apparent from the ruling of the Court, and also from the opinion of the Advocate General, that it was considered to be a relevant circumstance that the appellant had been engaged for an indefinite or unlimited period. This does indeed appear from the facts found by the Industrial Tribunal. They say: "The return of Valerie Stewart would not mean that the applicant would have to leave; and later: "The applicant's appointment was not a temporary one." The emphasis placed by the court upon the indefinite duration of the appellant's contract of employment suggests the possibility of a distinction between such a case and the case where a woman's absence due to pregnancy would have the consequence of her being unavailable for the whole of the work for which she had been engaged. Such a situation may be envisaged as Capable of occurring where the work is of purely seasonal duration, if not in the more exotic situations suggested in my speech in the earlier proceedings ([1992] I.C.R. at p. 180, [1993] 1 WLR 49, 54), namely where staff is • required for some specific event such as the Wimbledon fortnight or the Olympic games.
The Advocate General said in paragraph 9 of his opinion [1994] QB 718, 740:
"While it may be true that the woman in question was engaged for the purpose of replacing for a short time another employee during the latter's maternity leave, the fact remains that she was engaged on the basis of a contract for an indefinite period and therefore her inability to carry out the task for which she was engaged affects only a limited period in relation to the total length of the contract."
Later, in paragraph 15 ([1994] Q.B. 743), he said:
"In view of the foregoing observations, I see no need to tackle the question raised by the Commission in the course of the proceedings, concerning hypothetical situations in which the contract at issuers not, as in the present case, for an indefinite period but is for a fixed term, in the circumstances limited to the period in which a female employee who has just been engaged would have to be absent on maternity leave."
"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -
(a) on me ground of her sex he treats her less favourably than he treats or would treat a man."
"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."
The reasoning in my speech in the earlier proceedings ([1993] I.C.R. at pp. 180-182, [1993] 1 WLR 49, 53-55) was to the effect that the relevant circumstance which existed in the present case and which should be taken to be present in the case of the hypothetical man was unavailability for work at the time when the worker was particularly required, and that the reason for the unavailability was not a relevant circumstance. So it was not relevant that the reason for the woman's unavailability was pregnancy, a condition which could not be present in a man.
My Lords
"Is it discrimination on grounds of sex contrary to Directive 76/207 for an employer to dismiss a femal employee ('the appellant') who he engaged for the specific purpose of replacing (after training) another femaile employee during the latter's forthcoming maternity leave, in circumstances where
(a) very shortly after appointment, the employer discovers that the appellant herself will be absent on maternity leave during the maternity leave of the other employee, and the employer dismisses her because he needs the job holder to be at work during that period, and
(b) had the employer known of the pregnancy of the appellant at the date of appointment, she would not have been appointed, and
(c) The employer would similarly have dismissed a male employee engaged for this purpose who required leave of absence at the relevant time for medical or other reasons?";
"Article 2(1)read with Article-5(1) of Council Directive 76/207/EEC of. 9'February 1976: 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 precludes dismissal of an employee who is recruited for an unlimited term with a view, initially, to replacing another employee during the latter's maternity leave and who cannot do so because, shortly after her recruitment, she is herself found to be pregnant."
Cler: Parliamentor: