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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)  UKHL 13 (19 October 1995)
Cite as:  IRLR 645,  RTR 111,  4 All ER 577,  ICR 1021,  UKHL 13,  2 CMLR 990,  1 WLR 1454,  WLR 1454
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 UKHL 13
Date: 19 October 1995
Lord Keith of Kinkel
Lord Slynn of Hadley
LORD KEITH OF KINKEL
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: ( ICR 175,  1 WLR 49).
In brief, the appellant was engaged by the respondents with a view to replacing a pregnant employee, Mrs. Stewart, during the latter's maternity leave. Shortly afterwards the appellant discovered that she too was pregnant her baby being expected at roughly the same time as Mrs. Stewart's, and the respondents dismissed her. She claimed that her dismissal constituted discrimination against her on the ground of her sex, contrary to section 1 of the Sex Discrimination Act 1975. It was held by the Industrial Tribunal, the Employment Appeal Tribunal, the Court of Appeal and this House that on a proper construction of the relevant provision of the Act of 1975 the dismissal of the appellant did not constitute unlawful discrimination against her on the ground of her sex. However, it appeared to your Lordships that it was necessary to obtain a preliminary ruling from the European Court of Justice upon the true construction of article 2(1) of the Council Directive 76/207/E.E.C. of the Council of the European Communities, in order to see whether the dismissal of the appellant in the circumstances of this case was contrary to that article, and if so to consider whether it was possible to construe the relevant previsions of the Act of 1975 so as accord with the ruling of the European Court.
Article 2(1) provides:
"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.
Article 5(1) provides that
"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."
Your Lordships accordingly referred to the European Court of Justice, under section 177 of the Treaty of Rome, the following question:
"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?"
The ruling of the European Court of Justice was given on 14 July 1994 ( Q.B.718). The paragraphs of the ruling principally relevant are these (pp. 747, 748):
"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)  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)  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 ( I.C.R. at p. 180,  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  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 ( 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."
If such a situation does not fall to be distinguished, so that an employer who fails to engage a woman who, due to pregnancy, will not be available for any part of the period of the proposed engagement is to be made liable for wrongful discrimination, the result would be likely to be perceived as unfair 'to employers and as tending to bring the law on sex discrimination into disrepute.
The'provisions of the Act of 1975 which your Lordships must endeavour to construe; so as to accord if at all possible with the ruling of the European Court, are section 1(1)(a) and section 5(3). Section 1(1)(a) provides:
"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."
Section 5(3) provides:
"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 ( I.C.R. at pp. 180-182,  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.
The ruling of the European Court proceeds on an interpretation of the broad principles dealt with in Articles 2(1) and 5(1) of the Directive 76/207/E.E.C. Sections l(l)(a) and 5(3) of the Act of 1975 set out a more precise test of unlawful discrimination, and the problem is how to fit the terms of that test into the ruling. It seems to me that the only way of doing so is to hold that, in a case where a woman is engaged for an indefinite period, the fact that the reason why she will be temporarily unavailable for work at a time when to her knowledge her services will be particularly required is pregnancy is a circumstance relevant to her case, being a circumstance which could not be present in the case of the hypothetical man. It does not necessarily follow that pregnancy would be a relevant circumstance in the situation where the woman is denied employment for a fixed period in the future during the whole of which her pregnancy would make her unavailable for work, nor in the situation where after engagement for such a period the discovery of her pregnancy leads to cancellation of the engagement.
My Lords, for these reasons I would allow the appeal and remit the case to the Industrial Tribunal to assess compensation. The respondents through their managing director took part in the original proceedings before the Industrial Tribunal, but were not represented and took no part in any of the proceedings before the Employment Appeal Tribunal, the Court of Appeal, this House, or the European Court.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Keith of Kinkel. I agree with it and for the reasons which he gives I too would allow the appeal and remit the base to the Industrial Tribunal to assess compensation.
I have read in draft the speech of my noble and learned friend Lord Keith of Kinkel. I agree with it and for the reasons which he gives I too would allow the appeal and remit the case to the Industrial Tribunal to assess compensation.
For the reasons given by my noble and learned friend Lord Keith of Kinkel I too would allow the appeal and remit the question of compensation to an Industrial Tribunal.
LORD SLYNN OF HADLEY
For the reasons given by my noble and learned friend Lord Keith of .Kinkel I too would allow the appeal and remit the question of compensation to an Industrial Tribunal.
Upon further Report from the Appellate Committee to whom was referred the Cause Webb against E. M. 0. Air Cargo (UK) Ltd., That the Committee had heard Counsel as well on Tuesday the 14th as on Wednesday the 15th and Thursday the 16th days of July 1992, upon the Petition and Appeal of Carole Louise Nardin (nee Webb) of Hill Court, West Drayton, Middlesex praying that the matter.of the order set forth in the Schedule thereto, 'namely an' Order -of Her Majesty's Court of Appeal of the 20th day of December 1991, might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might; be reversed, varied or. altered or that the| Petitioner might-have such other' relief, in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; and Council having been heard on behalf of Her Majesty's Attorney-General as amicus curiae in the said appeal (which said appeal was heard ex parte as to the respondents E.M.O. Air Cargo (UK) Ltd., they not having entered an appearance thereto); That by an Order of this House of the 26th day of November 1992 the following question was referred to the Court of Justice of the European .Communities for a preliminary ruling pursuant to Article 177 of the Treaty establishing the European Economic Community
"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?";
That by a Judgment of the Court of Justice of the European Communities of the 14th day of July 1994 the following ruling was given in respect of the said question:
"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."
And the said Cause having been referred again to the Appellate Committee, which said Committee having heard Counsel on Thursday the 6th day of July last; and due consideration had this day of what was offered on either side in this Cause and of the said Judgment of the Court f Justice of the European Communities of the 14th day of July 1994:
It is Ordered and Adjudged by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order, of Her Majesty's Court of Appeal of the 20th day of December 1991 complained of in the said Appeal, the Order of the Employment Appeal Tribunal of the 14th day of February 1990 and the Decision of the Industrial Tribunal of the l5th day. of February 1988 be, and the same are hereby, Set Aside and that the Cause be and the same is hereby remitted back to the Industrial Tribunal to assess compensation: And it is further Ordered, That there be no order as to the Costs incurred in the Court of Appeal, in the Court of Justice of the European Communities, or in respect of the said appeal to this House, save that the Costs of the Appellant be taxed in accordance with the; Legal Aid Act.1988.