Pregnancy discrimination has always been omnipresent in the daily working life across western European countries. Over a long period of time pregnancy discrimination had been the topic of academic discussions as to whether it is a form of sex discrimination . Especially in the United Kingdom there were doubts in terms of conceptual discrimination law and whether discrimination on the ground of pregnancy fell under the sex discrimination law at all .
Generally, a direct discrimination is defined as a ‘less favourable treatment’ ‘on the grounds of’ a protected characteristic which the other person does not share.
Between the years 1991 to 2000, three cases have mainly influenced the development of discrimination law on the grounds of pregnancy.
In 1991, the European Court of Justice (ECJ) had to decide the case Dekker v Stichtig Vormingscentrum voor Jone Volwassen(VJV-Centrum) Plus . Ms Dekker applied for a job as a nursery in 1981. In the application procedure Ms Dekker informed her potential employer that she was three months pregnant. Nevertheless, a commission of her potential employer recommended her for the job as she seemed to be the “best candidate”. Despite this recommendation, Miss Dekker was finally not employed because of her pregnancy and she was informed that her potential employer would not have been able to recoup the sick pay caused by her absence. After having been rejected, Miss Dekker claimed for damages on the grounds of the Equal Treatment Directive 76/207 , which aimed for enforcing the equality between men and women. In this context the ECJ was asked by a national court in the preliminary ruling procedure about the interpretation of Directive 76/207.
The ECJ ruled that the fact that she was not employed because of her pregnancy was a direct discrimination on the ground of sex which could not be justified because of financial costs. The ECJ emphasized with this decision that a less favourable treatment of a woman because of her pregnancy –without the need to find a comparator- had to be called an unlawful discrimination on the grounds of sex “per se” . Therefore the court made clear that there was no need to find a comparator for a pregnant woman at all – so not as intended according to the Directive 76/207/EC- where there was a need for a comparator. The ECJ supported this argument by underlining that the situation of a pregnant woman was ‘unique’ and could not be compared to a man. For this reason the reasoning in Dekker was in breach of the Directive 76/207- where a comparison was intended. Although, the rejection of Ms Dekker’s job application was, according to the employer, “because of possible financial cost”, the ECJ ruled that these costs were also related to the woman’s pregnancy and wouldn’t have occurred without it . Therefore the discrimination took place because of her pregnancy.
Dekker became known for a new dimension in terms of discrimination according to the EC Directive 76/207 and questions of effects of this decision on domestic law arose. However, the reasoning of Dekker was even extended in 1994 in Webb v EMO Air Cargo (UK) ltd . This case is based on the story of Mrs Webb, who was intended to replace Mrs Stewart in her time of maternity leave. However, Mrs Webb, who worked under an indefinite contract, informed her new employer two weeks after she started about her pregnancy. This resulted in the employer’s will to terminate the working relationship. Mrs Webb claimed against this dismissal on the grounds of direct and indirect sex discrimination according to the Sex Discrimination Act . Mrs Webb’s action was dismissed by the Tribunal by ruling that there was no direct or indirect discrimination on the grounds of sex. For the Industrial Tribunal the unique and deciding aspect in this case was that Mrs Webber was employed only to replace a pregnant woman in her time of maternity leave. Furthermore, the court mentioned that a man who would have been recruited in order to replace an absent employee and had to stay away from work for a similar period of time, would have been dismissed as well. Thereupon, the EAT and the Court of Appeal reaffirmed the previous ruling and tried to compare Mrs Webb’s situation to a hypothetical situated man. However, the Court of Appeal was not sure about the compatibility of its ruling with EU Law and especially the question whether the pregnancy or the unavailability was the reason for the dismissal; therefore this case was referred to the ECJ. The ECJ emphasized in its ruling that it cannot be distinguished whether the unavailability of a pregnant woman or her pregnancy was the reason for a less favourable treatment according to article 2(1) and article 5(1) of Directive 76/207. For this reason the ECJ emphasized the meaning of the Equal Treatment Directive by ruling that every dismissal of an employee on the grounds of pregnancy causes an unlawful direct discrimination (‘per se’) which cannot be justified. The behaviour of Mrs Webb’s potential employer was contrary to the requirements of the Equal Treatment Directive as this discrimination was based on her pregnancy although the employer claimed that it was for financial reasons. However, the ECJ made also clear that ‘pregnancy’ is only an exception from the need to compare a man and a woman in terms of sex discrimination and pointed out that the only comparable scenarios in terms of pregnancy and maternity would be, if a woman suffered from illness after her maternity compared to a man suffering from illnesses. Despite the discrimination on the grounds of her pregnancy, the ECJ also emphasized that a dismissal of Mrs Webb who was employed under an indefinite contract would also not have been justified because the pregnancy was only to last for a foreseeable period of time. It was established that from now on any less favourable treatment on the grounds of a pregnancy was unlawful “per se”.
For this reason, it was regarded by members of the House of Lords as ‘a breach of the SDA as a comparator was not needed’ . This decision was part of an approach of making clear that maternity and pregnancy should be no ‘disadvantage’ for women anymore.
It was interesting to see whether the decision Webb could help and clarify the circumstances for assuming pregnancy discrimination. However, new circumstances and problems in terms of pregnancy discrimination with national law and especially the legal relation of national protection law for pregnant women in accordance with European Law arose.
In Ms Mahlburg v Mecklenburg-Vorpommern , a German labour court referred to the ECJ for preliminary ruling, as Ms Mahlburg sued the federal land of Mecklenburg-Vorpommern because she was not hired for the position as a nurse at Rostock University due to her pregnancy. Ms Mahlburg claimed for discrimination according to the German Paragraph 611a Bürgerliches Gesetzbuch (BGB) and Article 2 (1) of Council Directive 76/207/EEC.
Ms Mahlburg worked under a fix-term contract in the mentioned clinic and applied for an indefinite position as a nurse. On the date she applied for this job, Ms Mahlburg was already pregnant. Her application for the indefinite job was rejected by the clinic because of legal requirements of the national German law, where Paragraphs 3, 4 and 5 of the German Mutterschutzgesetz made it impossible for an employer to employ a pregnant woman in certain areas of an organisation where she could be exposed to harmful effects. The regional German labour courts rejected Ms Mahlburg’s claim against her rejection because the fact that she could not be employed in this area was legitimate according the national German paragraph 611a BGB, which justifies an employer to treat a woman less favourably if there are requirements to fulfil. Paragraph 611a BGB intended to delete sex differences between women and men in the daily working life. However, this paragraph included also the need to treat women under special circumstances differently, for example in terms of health and safety reasons for pregnant women in their working environment.
The regional labour court was not certain whether the national Paragraph 611a BGB and the paragraphs of law to protect pregnant women could be interpreted with respect to Directive 76/207 and the European Law. Therefore the question arose if this was also in accord with the European Law and especially Directive 76/207 which aims for the equality between men and women. The ECJ answered this question by emphasizing that, according to Article 2 (3) of Directive 76/207, there is no problem when a law is intending to protect a woman. Nevertheless, the ECJ also upheld the view that these protections should not disadvantage a woman within the hiring procedure.
During the preliminary ruling procedure the ECJ also ruled that the refusal of the woman’s application because of her pregnancy was a direct discrimination on the ground of her sex as she was not able to accomplish the job under an indefinite employment contract from the beginning because of her pregnancy. However in terms of conceptual Law in Ms Mahlburg the less favourable treatment was not based directly on the pregnancy of Ms Mahlburg, but because of a German legislation that had to be applied by the employer in order to protect a pregnant woman.
Mahlburg became famous in terms of conceptual European Law as this decision caused a duty for a national court to follow the principle of directive-conform interpretation for the first time in European Law history. Throughout, the assumptions which were made after the decision Webb, that employers were not allowed to ask a prospective or employee about a pregnancy, were confirmed by the ECJ. However, according to the judgement Mahlburg only the question for pregnancy under an indefinite employment contract is protected.
A look on these three cases reveals that the development and improvement in terms of pregnancy discrimination rights was especially initiated by the interpretation and application of EC Directive 76/207 which played an important role for the first time in the case Dekker. In this case the ECJ ruled that there was a less favourably treatment of a woman because of her pregnancy on the grounds of sex without the requirement of a hypothetical comparator – in contrast to the Directive 76/207- and by emphasizing pregnancy as a gender-related distinctiveness . The ECJ supported this assumption by mentioning that only women can be pregnant and therefore a job refusal because of pregnancy is legally to be treated like a direct discrimination on the grounds of sex.
Important for the understanding and awareness as well as the interpretation and extent of protection of pregnancy discrimination in general was the decision Webb, as the ECJ clarified that it had to be assumed discrimination on the grounds of a pregnancy although obviously the unavailability of an employee seemed to be responsible for the fact that she was dismissed. In this context the ECJ referred to the meaning and importance of the Equal Treatment Directive which aimed to prevent any discrimination on the grounds of her pregnancy, no matter if she was dismissed as an employee because of her ‘unavailability’ caused by her pregnancy or by the fact that she was pregnant. For this reason, the ECJ assumed – without a doubt – an unlawful direct discrimination on the ground of her pregnancy.
Mahlburg was different to Dekker and Webb as the rejection of Ms Mahlburg was not because of her pregnancy, but because of health and safety aspects for pregnant women who are employed in certain business areas according to domestic law. In this case a less favourable treatment on the grounds of pregnancy was ‘legal’ according to German law, but not in accordance with European Law as the national pregnancy protection should not cause disadvantages for women in terms of access to employment.
Although having had difficulties with the national law in the decision Ms Mahlburg the ECJ consequently continued his reasoning in terms of pregnancy discrimination and made clear that there is not intended to treat women less favourably on the grounds of their pregnancy. Finally, it can be seen that women discrimination on the ground of pregnancy has been changed between 1991 and 2000 significantly because of the above mentioned decisions. The most important aspect for this development has been the Directive 76/207 and its interpretation by national and European courts.
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