http://www.ncl.ac.uk/~nlawwww/articles5/morris5.html
[1995] 5 Web JCLI Words 4736
The death throes of the sick man: Webb v EMO Air Cargo (UK) Ltd (No 2)

Anne Morris
Senior Lecturer in Law, Feminist Legal Research Unit, Faculty of Law, University of Liverpool
<aemorris@liverpool.ac.uk>
Copyright  1995 Anne Morris. 
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary
The discriminatory treatment of pregnant employees has been a particularly problematic issue for the English judiciary.  Starting with the notion that the Sex Discrimination Act 1975 could not apply to pregnant women, the judges finally accepted that the Act could be construed to protect them from sexually discriminatory behaviour on the part of employers, but only by the clumsy (and always unsatisfactory) mechanism of comparison with a sick man.  Despite what seemed to be clear and definitive decisions from the European Court of Justice, the judges in the United Kingdom have persisted in the idea that comparison was necessary.  Nowhere was the reluctance to promote equality of opportunity for pregnant workers more apparent than in the long, tortuous saga of Mrs Webb.  Eight years after she announced her pregnancy and was sacked, we have a final decision, (The Times, 20 October 1995; other references in the text are from the transcript) subject only to the calculation of compensation.  In some ways the decision has been overtaken by events, since all employees are now protected from dismissal on grounds of pregnancy regardless of their length of service with that employer (Employment Rights Act 1995, s. 94).  Nevertheless, there are still benefits to bringing a claim under the Sex Discrimination Act 1975, not the least being that compensation is not subject to a statutory maximum.  There may also be cases which do not involve dismissal but some other form of discriminatory treatment especially refusal to recruit or to promote.  Moreover, the Webb case is a fascinating study in judicial attitudes towards working women and pregnant workers in particular.

Contents
The Facts 
The Judgment 
The Case History 
(i) Turley
(ii) Hayes 
(iii) Webb 
(iv) Dekker 
(v) Back to Webb 
The decision of the ECJ 
Analysis 
Conclusion 

The Facts
In July 1987 Mrs Webb was employed by EMO Air Cargo (UK) Ltd to cover for the absence of an employee, Mrs Stewart, who was due to take maternity leave at the end of the year.  It was envisaged that Webb would be trained by Stewart for six months in order to familiarise her with the job.  One aspect that should be noted, since it was seized on as crucial, was that although Webb was employed to cover for someone about to have a baby, her contract was not for a fixed term: Webb was to be kept on even after Stewart had returned from her leave.  Just two weeks after starting work, Webb found that she too was pregnant and on telling the employer, she was sacked.  

She complained to an Industrial Tribunal that dismissal because of pregnancy was unlawful under Sex Discrimination Act 1975, s 1(1)(a) which provides that:
“A person discriminates against a woman...if - (a) on the ground of her sex he treats her less favourably than he treats or would treat a man....”  
The Industrial Tribunal dismissed her claim, holding that the “real” reason for her dismissal was the fact that she would be unavailable to carry out the task for which she had been principally employed, which was to take the place of the employee who was due to take maternity leave.  This was not a sexually discriminatory reason, because the employer would have treated in the same way a man who was going to be unavailable.  This decision was upheld in both the Employment Appeal Tribunal ([1990] IRLR 124) sitting with five members) and in the Court of Appeal ([1992] IRLR 116). The House of Lords indicated that it would be inclined to agree with the lower courts but, on the basis that it was necessary to construe the English legislation so far as possible to fit the interpretation placed by the European Court on the relevant European provisions, the case was referred to the ECJ ([1993] IRLR 27) asking whether it would be contrary to the Equal Treatment Directive (76/207/EEC) for an employer to dismiss a pregnant women on the facts of Webb. The ECJ answered that such a dismissal would indeed be contrary to the Directive (C-32/93 [1994] IRLR 482, and see below).

The Judgment
When the case was referred back to the House of Lords, their Lordships accepted the need to interpret  the Sex Discrimination Act 1975, ss 1 and 5 in the light of the ruling of the European Court and reached the conclusion (somewhat grudgingly) that Webb had been unlawfully dismissed.  The importance and the limitations of the decision can only be appreciated, however, within the legislative and case history of these provisions as applied to pregnant workers.

The Case History 
(i) Turley  
In Turley v Allders Department Stores Ltd [1980] ICR 66 the Industrial Tribunal assumed that Turley had been dismissed because she was pregnant per se (not, for example, because of the consequences as to her ability to do her job).  On this basis, it was held that as a preliminary question of law it must be decided whether such a case could come within the meaning of the Sex Discrimination Act 1975, s 1(1)(a).  Although dismissing someone because she is pregnant might seem to be a classic example of sex discrimination, the Industrial Tribunal were much influenced by s 5(3) of the Act which states that:
“A comparison of the cases of persons of different sex...under section 1(1)...must be such that the relevant circumstances in the one case are the same or not materially different, in the other.” (Emphasis added).  
This is the provision which is said to require a comparison of like with like.  With whom should a pregnant woman be compared?  In the view of the majority of the Employment Appeal Tribunal there was no equivalent: “When she is pregnant a woman is no longer just a woman.  She is a woman, as the Authorised Version of the Bible accurately puts it, with child, and there is no masculine equivalent” (per Bristow J at p 70). 

The dissenting member of the EAT, Ms Smith, was of the opinion that such a decision contradicted both the spirit and the letter of the statute.  In order, however, to comply with the apparent requirement for a comparator, Ms Smith resorted to the sick man:
“Pregnancy is a medical condition.  It is a condition which applies only to women.  It is a condition which will lead to a request for time off from work...A man is in similar circumstances...who in the course of the year will require time off for a hernia operation, to have his tonsils removed, or for other medical reasons.  The employer must not discriminate by applying different and less favourable criteria to the pregnant woman than to the man requiring time off”.

(ii) Hayes
Although in Hayes v Malleable Working Men’s Club and Institute [1985] IRLR 367 it was held that Turley could be distinguished because of the fallacious assumption that Turley had been dismissed simply because she was pregnant and not because of the consequences of that, the Employment Appeal Tribunal was also persuaded of the correctness of the sick man comparison and thus the unhealthy male employee (in all his various guises) entered the realms of pregnancy discrimination.  It is easy to sympathise with the approach taken by Ms Smith in Turley since she was, after all, simply trying to get the dismissed pregnant worker within the ambit of the legislation.  There have, however, always been serious deficiencies in such an approach.  On a purely pragmatic level, it has the unfortunate consequence of penalising the good employer and protecting the bad.  If an employer would have dismissed a sick man there would be no liability for sex discrimination in dismissing a pregnant woman.  In other words, an employer who is even-handedly ungenerous is protected from claims based on discrimination, if not from those based on unfair dismissal (which in most cases requires a two year qualifying employment).  On a no less important level, the test is unfortunate in that it encourages the perception of pregnancy as an illness - which it is not.  Indeed, it might even be argued that it is only with the increased medicalisation of pregnancy that it has come to be seen as a “medical” condition.  The idea that pregnancy is a natural part of the lives of many working women is reflected in the scheme of maternity rights contained in the employment protection legislation (see now Employment Rights Act 1995).  These rights were strengthened as a result of amendments required by the provisions of the 1992 Pregnant Workers Directive (92/85/EEC) which, though opposed by the United Kingdom Government, was initiated as a health and safety measure and was subject to majority voting under Article 118A of the Treaty.  In particular, the protection against dismissal, regardless of the length of employment, and the right to return to work are indications that pregnant employees are to be accommodated within the workplace and not treated as an unwelcome manifestation of the peculiarities of female physiology.  As was held by the House of Lords in a different context: “it is often a considerable inconvenience to an employer to have to make the necessary arrangements to keep a woman’s job open for her while she is absent from work in order to have a baby, but this is a price that has to be paid as part of the social and legal recognition of the equal status of women in the workplace” (Brown v Stockton on Tees Borough Council [1988] IRLR 263, 266).

In Turley’s case it had been argued on her behalf that where a woman was discriminated against because of pregnancy, there should be no comparison made (despite s 5(3)) because pregnancy is a condition peculiar to women - that is, discrimination on grounds of pregnancy must, by definition, be sex discrimination because it is so inextricably linked with the sex of the person experiencing it.  The very fact that men cannot become pregnant meant that it must be sex discrimination, not that there was no remedy available as was held in Turley.  This argument was not accepted in Turley, nor was it met with favour when it resurfaced in Webb in the Employment Appeal Tribunal ([1990] IRLR 124). 

(iii) Webb
It was argued for Webb that there were three possible views of the meaning of s.1(1)(a) where a pregnant woman has been dismissed.  First, since a man cannot be pregnant no comparison can be made and thus no discrimination is possible (the Turley answer).  Second, that the (hypothetical) sick man should be used to test whether her treatment has been discriminatory (the Hayes answer).  Third, that dismissal because of a uniquely female factor means that there is, automatically, direct discrimination.  Counsel for Webb argued that the third approach was the most appropriate.  This was rejected not least because of the insistence of the Court that s 1 required a comparison.  It was also held, however, that dismissals because of “pregnancy” may in reality occur because of the inconvenience to the employer of having a vital employee absent at a crucial period.  In other words, it is not sex discrimination to dismiss someone because her pregnancy means she will be unavailable for work: that is dismissal on business grounds.  

In coming to this conclusion the Employment Appeal Tribunal did not have the advantage of the House of Lords’ decision in James v Eastleigh Borough Council ([1990] IRLR 288, which held that direct discrimination cannot be defended on the grounds of good motive) nor, more specifically, the crucial decision of the European Court of Justice in Dekker v Stichting Vormingscentrum voor Jonge Volwassen (VJV-Centrum) ([1991] IRLR 27).  The same excuse cannot, however, be made for the Court of Appeal in Webb ([1992] IRLR 116).

(iv) Dekker
The facts of Dekker were straightforward.  When Elizabeth Dekker applied for a job, she told her prospective employer that she was pregnant.  The interview committee chose her as the most suitable candidate, but the VJV Board decided against appointing her for reasons of Dutch Law concerning insurance payments to employees incapacitated by illness or pregnancy, the effects of which would have meant that VJV ran the risk of not being reimbursed for the wages they would be bound to pay her.  Dekker complained, inter alia, that the refusal was contrary to the Equal Treatment Directive (76/207/EEC) and the European Court of Justice agreed.  It was held that an employer directly contravenes the principle of equal treatment in Articles 2(1) and 3(1) of the Directive if he refuses to employ a woman found suitable for the post where the reason for the refusal is the possible adverse consequences for him of employing a pregnant woman.  The Court stated: 
“As employment can only be refused because of pregnancy to a woman, such a refusal is direct discrimination on grounds of sex.  A refusal to employ because of the financial consequences of absence connected with pregnancy must be deemed to be based principally on the fact of pregnancy.”

This seemed sufficiently clear: pregnancy is a special case and where it forms the basis for discrimination it is, by definition, sex discrimination.  When Dekker is read together with its companion case, Handels-Og Kontorfunktionaerernes Forbund I Danmark v Dansk Arbejdsgiverforening (the Hertz Case, [1990] IRLR 31) the result is to create a protected period which lasts for the length of pregnancy and maternity leave and during which a refusal to employ or a dismissal based on the pregnancy or absence on leave is, per se, discriminatory.  When Webb reached the Court of Appeal, Dekker seemed likely to make argument pointless.   Nothing daunted, however, that Court clung to the necessity, derived from the English legislation, to make a comparison with a hypothetical sick man.  Dekker could not, obviously, be ignored but the Court attempted on the one hand to distinguish the case (on its facts), and on the other to find constitutional reasons for not applying it (it would require a distortion of the 1975 Act). This decision illustrates both the ingenuity of common lawyers and the continuing problems of reconciling European legislation and Parliamentary supremacy.

(v) Back to Webb
The House of Lords were neither so bold nor so decisive ([1993] IRLR 27).  Recognising that:  “[t]here can be no doubt that in general to dismiss a woman because she is pregnant or to refuse to employ a woman of childbearing age because she may become pregnant is unlawful direct discrimination” it was, nevertheless, held that in this case there was no application of a “gender-based” criterion.  Webb was not dismissed because she was pregnant but because she would be unavailable for work at the relevant time.  With reference to the Sex Discrimination Act 1975, their Lordships held that the comparison demanded by s 5(3) called for a comparison between male and female employees who were unavailable to the employer:  
“The relevant circumstance for the purposes of the comparison required by s 5(3) to be made is expected unavailability at the material time.  The precise reason for the unavailability is not a relevant circumstance, and in particular it is not relevant that the reason is a condition which is capable of affecting only women, or for that matter only men.”
In the opinion of Lord Keith, if this were not the correct approach then surprising results could follow and he cites the example of an employer wishing to employ someone for a specific and fixed period - such as Wimbledon fortnight.  If one of the applicants was expecting a baby on the first day of the event, it seemed absurd, to his Lordship, that she should be able to complain of unlawful sex discrimination if she were not selected on the basis of her unavailability, simply because she was pregnant.  Their Lordships were aware, of course, that they must take cognisance of the decisions of the European Court of Justice on the effect of the Equal Treatment Directive.  Having referred to both Dekker and Hertz it was decided that the European Court had not yet had the opportunity to pronounce on a case such as Webb, where the fundamental reason for dismissal was not pregnancy but unavailability (though it might be thought that Dekker should have indicated what the answer would be since in that case it was not pregnancy, but cost). It was decided therefore to refer to the European Court the question of whether it was contrary to the Equal Treatment Directive to dismiss a pregnant employee who was employed specifically to replace another employee, where the employer would not have employed that woman if it had been known she was pregnant and where a man requiring leave would also have been dismissed.

The decision of the ECJ
The European Court looked to the provisions of the Equal Treatment Directive in which  Article 2(1) states that the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex, either directly or indirectly.  Under Article 5(1) it is provided that the application of that principle with regard to working conditions, including those governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.  According to the Court, its own decisions in the Hertz case and the more recent Habermann-Beltermann case ([1994] IRLR 364), in which a pregnant woman was held to be unlawfully discriminated against when dismissed because of legal restrictions on her working at night, indicated that the dismissal of a female worker because of her pregnancy is direct sex discrimination.  The Court also referred to Council Directive 92/85/EEC (Pregnant Workers Directive) which provides in Article 10 that the dismissal of women during pregnancy or maternity leave is prohibited, save in exceptional cases not connected with pregnancy.  On this basis the Court held that:
“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.”  
In a particularly welcome statement the Court observes that pregnancy is not comparable with a pathological condition, even less with unavailability on non-medical grounds.  The Court then held that where, as here, there is a contract of indefinite duration, the dismissal of a pregnant woman cannot be justified on the basis of her inability to fulfil a fundamental term of the employment contract.  It goes without saying that, for the employer, the availability of an employee is a necessary precondition for the proper performance of the contract but, if such an argument were accepted as determinative in this context, the provisions of the Equal Treatment Directive would be ineffective.  The protection afforded by European legislation cannot depend on whether the woman’s presence at work during the maternity period is essential to the undertaking.   Where a pregnant woman is temporarily prevented from fulfilling her obligations under a contract for an indefinite period, she cannot lawfully be dismissed.  It was irrelevant that, in this particular case Webb had been brought in to cover - initially - for another employee.

Analysis 
When Webb finally returned to the House of Lords in October 1995 their Lordships could not ignore such a clear message and, finally, Webb won her case and the matter was remitted to the Industrial Tribunal for assessment of compensation.  The manner in which the decision was reached should, however, be noted.  Moreover, the case still leaves certain issues ominously open.  

Their Lordships had to decide how, if at all, they could construe the provisions of the Sex Discrimination Act 1975 so as to accord with the decision of the European Court as to the meaning of the European legislation.  Were it not possible to do so, a number of problems would ensue, not the least being that legislation would be required to amend the 1975 Act.  Pending that, different rules would apply to public sector employees (who could rely directly on the Directive) as opposed to those in the private sector (who could not).  On the other hand, since the United Kingdom Government would not have properly enacted the Directive, the way would be open, theoretically, for Francovich type claims (C-6/90 [1992] IRLR 84) - which would be the only way in which Webb herself could have been compensated.  In the event, it was held that it was possible to apply the stricter test of the English legislation in a way which met the requirements of the Directive, although in so doing, their Lordships appear to have relinquished any pretence of  refusing to distort the words of the statute.  Lord Keith referred to the fact that in the earlier hearing he had been of the opinion that Webb’s pregnancy - the reason for her unavailability - was not a “relevant circumstance” within s 5(3).  Now he held that, in cases such as this, pregnancy was a relevant circumstance, “being a circumstance which would not be possible in the case of the hypothetical man.”   

It was also held, however, that pregnancy would not necessarily be a relevant circumstance where a woman is refused employment for a fixed period during the whole of which she would be unavailable because of pregnancy, or where after being employed for such a period the discovery of her pregnancy leads to dismissal.  This apparent exception derives from the emphasis placed by Lord Keith (giving the leading speech) on the fact that both the European Court and the Advocate General had considered it to be a relevant circumstance that Webb had been employed for an indefinite period.  This is held to suggest a distinction between such cases and those where the absence due to pregnancy will mean that the woman is unavailable for the whole period for which she was engaged.  The Advocate General flagged this by expressly declining to tackle the question raised by the Commission as to what would be the result in a case where the contract was for a fixed term, and the employee just engaged would be absent for all of it on maternity leave.  The view of Lord Keith, with whom the other judges agreed, was that, were this distinction not to be made, so that an employer would still be unlawfully discriminating in refusing to employ such a woman, “the result would be likely to be perceived as unfair to employers and as tending to bring the law on sex discrimination into disrepute.”

It would, perhaps, be churlish to suggest that this succinct decision is, though, welcome, hardly ground-breaking in the campaign for equality for working women.  Unlike some (for example the decision on part-timers: Equal Opportunities Commission v Secretary of state for Employment [1994] 1 All ER 910) it does not represent dramatic progress, nor is there rhetoric to stir the hearts of those committed to improving the rights of women at work.  What is wrong with the decision?  First, it invites a challenge from an employer who has employed a woman on a contract of fixed duration.  Before accepting the superficially logical distinction between the two types of contract, and before agreeing too readily with Lord Keith that any other approach would bring the law into disrepute, consider the fact that under the amended maternity scheme (Employment Rights Act 1995, s 94) an employee is protected from dismissal on grounds of pregnancy or connected reasons regardless of the length of employment - or of the contract.  Consider also, that if it is sex discrimination to dismiss a pregnant woman working under an indefinite contract, it remains sex discrimination to dismiss one under a contract for three months.  It may be “justifiable” in common sense terms to dismiss or to refuse to employ, but justification is, theoretically, unavailable in English law as a defence in direct discrimination cases (James v Eastleigh Borough Council).  Moreover, to single out women on fixed term contracts as being worthy of less protection is unfortunate at a time when such contracts are proliferating in many areas.  It would not be contrary to the spirit of the European Court’s decision to argue that the suggested exception should apply only to those, presumably, few cases where there are genuine reasons for fixed terms and not where the employer’s primary aim is to maintain flexibility by preventing employees from qualifying for employment protection rights.  If such an exception were to be supported it would be better to legislate for it, rather than to attempt to contort existing provisions and, more importantly, to risk the possibility that the need to deal with a small number of cases would lead to a general weakening of the strict approach to direct discrimination.

The final question concerns the sick man - has he finally breathed his last, or is he still staggering on?  It is safe to say that, where pregnant workers are concerned, the employer cannot defend his actions by claiming that he would have treated a hypothetical sick man in the same way.  The European Court are clear on this.  The House of Lords is not quite so lucid in its pronouncement, in the context of s 5(3), that pregnancy can be a relevant circumstance in the case of a woman, even though it could not be in the case of a hypothetical man.  Perhaps, in any event, we must guard against the demise of our sick male colleague.  He is not available to the employer as a defence, but presumably he may still be of use to the pregnant woman herself.  A woman who finds, for example, that her contract is less favourable to pregnant workers than to those who are unavailable for other reasons may well wish to compare herself to a (sick) man.  Her argument is that if she had been a sick man she would have been entitled to benefits which are not available to her as a pregnant woman: see Tindale v Barnsley Building Society COIT 15289/91 reported in  Equal Opportunity Review, Discrimination Case Law Digest, (1993) No 15, p 5).

Conclusion
Conceptually it is, admittedly, difficult to encompass pregnancy within a scheme of equal treatment.  The need to concentrate on equal treatment, rather than on equal opportunities is one of the more glaring deficiencies of the legislative scheme.  The requirement that like must be compared with like ignores the fact that, as between the sexes, there are areas where there is no adequate comparison available.  Sometimes this can be dealt with, as in the cases concerning appearance (hair length, beards, clothing) by generalising and, it must be said, stereotyping.  Pregnancy, however, is not the same as anything else.  It is not of itself an illness; it does not of itself occasion unexpected absence; it is not only natural but (from the point of view of society), essential.  To discriminate against women because they are, or may become pregnant is a particularly insidious and damaging example of sex discrimination.  Taken to its logical conclusion it faces women with the choice of being workers or being mothers: a choice which is not demanded of men who are or may become fathers.  Pregnancy is where the law has to decide which side of the social policy fence it wishes to fall.  In this country today there are numerous examples of situations in which the employer is allowed to plead economic necessity as a defence (indirect discrimination being just one example: Rainey v Greater Glasgow Health Board [1987] IRLR 26).  In Webb the law has gone some way to giving priority to the rights of the employee, but any deviation down the route of justification (whether in short term contracts or not) would be regrettable.  The majority in Turley were right to find no comparator for a pregnant woman, wrong in the conclusion they drew.  The minority was right to seek to find a remedy, mistaken in the way she did it.  For the future the most important lesson to be learned from Webb is that pregnant workers are a feature of the workplace and employers must learn to accept them as such.  Who knows - perhaps we would all then benefit from family-friendly employment policies?