Monthly Nutcase: Webb v EMO Air Cargo (UK) Ltd 1994 (EU Law)

No comments, posted on October 31, 2012

This month in our series of monthly bitesize extracts from Nutcases revision guides, we have an outline of Webb v EMO Air Cargo (UK) Ltd 1994 in EU Law.

Nutcase-Revision-Guide-REUTERS-Tony Gentile

REUTERS/Tony Gentile

Key Principle

There shall be no discrimination on grounds of sex either directly or indirectly in the public or private sectors, including public bodies: art.14(1) of Directive 2006/54.

The Case: Webb v EMO Air Cargo (UK) Ltd (Case C-32/93) 1994

This decision concerned a woman who was dismissed when she became pregnant while employed on an indefinite term during the maternity leave of another employee. The fundamental issue was whether she was unlawfully dismissed. Ms Webb claimed that the dismissal amounted to discrimination contrary to s.1 of the Sex Discrimination Act 1975 and that the Act should be interpreted subject to the Equal Treatment Directive 76/207. The House of Lords decided to refer questions for interpretation of the directive to the ECJ under art.267.

Held

(ECJ) Article 2(1) read with art.5(1) of Directive 76/207 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 herself is found to be pregnant. [1994] E.C.R. I-3567.

Commentary

[1] The ECJ ruled that no comparison should be made between the situation of a woman incapable of working due to pregnancy and a man similarly incapable for medical or other reasons. Pregnancy is not a pathological condition comparable to non-availability for work on non-medical grounds (which would otherwise justify dismissal without discrimination on grounds of sex).

[2] The ruling makes it clear that dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds related to her inability to fulfil a fundamental condition of her employment contract. The wording appeared to provide a loophole allowing dismissal in circumstances where a woman becomes pregnant having been engaged for a definite period of time (e.g. as a maternity leave replacement).

[3] This anomaly was resolved by Directive 92/85 on pregnant workers and working mothers, which provides protection for all pregnant employees against dismissal, regardless of the nature of contractual service. The directive does not cover refusal to employ a pregnant woman. However, in Mahlburg v Land Meckleburg-Vorpommern (Case C-207/98) refusal to appoint a pregnant woman for an indefinite period in line with a national prohibition was found to be in breach of Directive 92/85. See now art.14(1)(c) of Directive 2006/54.

[4] See also Melgar v Ayuntamiento de Los Barrios (Case C-438/99) and Tele Danmark A/S (Case C-109/00).

M had been recruited by the municipality of Los Barrios inSpain for three months, her contract being renewed twice. After signing a fourth contract for a fixed term on a part-time basis in May 1999, she was issued with a letter stating that her contract would terminate in June 1999. She was pregnant at the time and gave birth in September 1999. M brought proceedings in the national courts against the municipality, leading to referral under art.234.

Tele Danmark A/S (Case C-109/00) also involved an employee on a fixed-term contract (six months, in this case) who was dismissed on account of pregnancy. Tele Danmark claimed that the applicant should have informed them that she was due to give birth before the end of the six-month period. Clarification was sought by the Danish court under art.234.

The ECJ held (in Melgar) that the prohibition on the dismissal of pregnant women applies to both fixed-term and part-time appointments. In Tele Danmark the ECJ confirmed that a refusal of employment on account of pregnancy cannot be justified by financial loss which the employer may suffer, if he recruits a woman during her maternity leave or because the woman he has recruited cannot occupy the post during her pregnancy.

[5] Applying the principle of non-discrimination, pregnant workers require protection against unfair dismissal throughout the period of pregnancy: Brown v Rentokil (Case 394/96). In Paquay (Case C-460/06) the ECJ held that Directive 92/85 prohibits the notification of a decision to dismiss on grounds of a pregnancy and/or birth of a child during the period of protection in art.10(1) of the directive.

[6] Directive 2006/54 provides in art.15 that a woman on maternity leave is entitled to return to her job or an equivalent post on terms and conditions no less favourable and to benefit from any improvement in working conditions to which she would have been entitled during her absence. Member States which recognise rights in relation to paternity and adoption are required under art.16 to protect the beneficiaries of such rights on a similar basis to art.15.

This is an extract from Nutcases European Union Law by Penny Kent, available from bookstores and Amazon.co.uk.

Nutshells and Nutcases are the original revision and starter guides with content from Sweet & Maxwell and Westlaw UK. Nutshells are an ideal starter guide to the subject, giving a full overview, while Nutcases give an in-depth case analysis of the facts, principles and decisions of the most important cases.

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