Secretary of State for Social Security v. Walter  UKSSCSC CJSA_1920_1999 (06 December 2001)
(Secretary of State for Social Security v. Walter  EWCA Civ 1913)
CA (Peter Gibson, Robert Walker and Keene LJJ) CJSA/1920/1999
Discrimination on grounds of sex – absence of leave granted to full time student who was pregnant – whether direct discrimination contrary to Council Directive 79/7/EEC
The claimant was part way through the third year of a full-time degree course when she applied for leave of absence. She was expected to return to resume her third-year studies at the beginning of a subsequent academic year after her confinement. She applied for jobseeker's allowance, which was refused on the ground that she was a "full-time student" according to the definition used in the Jobseeker's Allowance Regulations 1996, which meant that she was regarded as not available for employment. A tribunal dismissed the claimant's appeal, and she appealed to the Commissioner. The Commissioner decided that jobseeker's allowance is a single benefit and that the benefit is within the scope of Article 3 of Council Directive 79/7/EEC. The Commissioner further decided that discrimination against a pregnant student is direct discrimination against women in breach of Article 4 of the Directive, that there is such discrimination in the terms of the Jobseeker's Allowance Regulations 1996, and that no justification for that discrimination has been established. The Secretary of State appealed to the Court of Appeal.
Held, allowing the appeal, that:
- the Jobseeker's Allowance Regulations 1996 make no express distinction between men and women, nor do they seek to deal with whether a woman is pregnant or not;
- the claimant's ineligibility for jobseeker's allowance derived from her status as a student, and her leave of absence did not alter the position;
- European law seeks to protect in general terms the position of pregnant women, but it is an over-simplification to assert that for a pregnant woman to suffer any detriment connected with her condition amounts to discrimination;
- notwithstanding that the claimant was faced with a harsh decision whether to abandon her course and obtain jobseeker's allowance, or to continue as a student on leave of absence and not obtain it, the Regulations do not deprive a woman of the right to benefit because she is pregnant;
- the Regulations are not directly discriminatory against pregnant women or against women generally, and are not therefore in breach of Council Directive 79/7/EEC.
[Note: Subsequent to the decision of the Commissioner, the Court of Appeal held, in Hockenjos v. Secretary of State for Social Security  EWCA Civ 624, that income-based jobseeker's allowance fell within the scope of Council Directive 79/7/EEC. Given, in the present case, the Court's conclusion on direct discrimination, justification was not considered; and indirect discrimination was not an issue before the Court.]
DECISION OF THE COURT OF APPEAL
Mr. Nicholas Paines QC and Miss. Natalie Lieven (instructed by the Solicitor to the Departments of Health and Social Security) appeared for the Appellant.
Mr. Richard Drabble QC (instructed by Messrs. Hugh James Ford Simey) appeared for the Respondent.
LORD JUSTICE KEENE:
"(a) is available for employment;
(b) has entered into a jobseeker's agreement which remains in force;
(c) is actively seeking employment;
(d) satisfies either –
(i) the conditions set out in section 2; or
(ii) the conditions set out in section 3;
(e) is not engaged in remunerative work;
(f) is capable of work;
(g) is not receiving relevant education;
(h) is under pensionable age; and
(i) is in Great Britain."
"if he is a full-time student during the period of study …"
"Full-time student" is defined by regulation 1(3) so as to include a person aged 19 or over (which Ms. Walter was) attending a full-time "course of study" of certain types, including such a course as she had been attending. The same regulation defines "course of study". It provides:
"for the purposes of this definition a person who has started a course of study shall be treated as attending or undertaking it …. until the last day of the course or such earlier date as he abandoned it or is dismissed from it."
"Period of study" is defined by regulation 4 in similar terms. Consequently, any student who takes leave of absence from his or her studies for any reason will not be entitled to claim jobseeker's allowance. Yet at the same time the "intercalating" student who has interrupted his or her studies in this way is not entitled to a mandatory or discretionary student grant, or a student loan, during the period of intercalation. The difficulties thereby created for certain groups, such as those with caring responsibilities or suffering bereavement, as well as those who take leave of absence because of pregnancy, have been the subject of critical comment by the Social Security Advisory Committee in its report to the Secretary of State dated 7 May 1998. Nonetheless, a challenge on the ground of irrationality to earlier similar regulations dealing with income support failed in O'Connor v. Chief Adjudication Officer  1 FLR 1200. Auld LJ commented at p. 1214 F that:
"the fact that the general policy may produce hardship in individual cases does not make it or the subsidiary legislation implementing it irrational. More specifically, simply because there may be a powerful or sympathetic case for inclusion in the system of social security benefits for full-time students whose courses are interrupted for one reason or another short of illness, and for full inclusion in the case of illness, does not make it irrational to exclude them."
"It may be shown to be unfair but, in my view, it cannot possibly be stigmatised as being irrational."
"The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as "the principle of equal treatment."
"1. The principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:
- the scope of the schemes and the conditions of access thereto;
- the obligation to contribute and the calculation of contributions;
- the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.
2. The principle of equal treatment shall be without prejudice to the provisions relating to the protection of women on the grounds of maternity."
"It is common ground that the national provisions at issue in the main proceedings are not directly discriminatory, since they do not exclude persons in minor employment from the statutory scheme at issue on the ground of their sex. It must therefore be considered whether such provisions may constitute indirect discrimination."
"It should be stressed that the reply to the question whether the refusal to employ a woman constitutes direct or indirect discrimination depends on the reason for that refusal. If that reason is to be found in the fact that the person concerned is pregnant, then the decision is directly linked to the sex of the candidate."
LORD JUSTICE ROBERT WALKER:
LORD JUSTICE PETER GIBSON:
"If it can be shown that an individual is subject to discrimination, that is, she is treated differently in some way because she is pregnant, then that is a breach of the principle of equal treatment."
"If the Secretary of State treats her in the same way as a male, without making special provision for the case of the pregnant student, then he is discriminating against pregnant women, and therefore discriminating against women in general." (My emphasis).
Order: Appeal allowed. No Order for costs. Public funding assessment of Appellant's costs. Permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment.)