* United Kingdom, , 6 July 2010 Appeal Nos. UKEATS/0062/09/BI and UKEATS/0063/09/BI

Identification of the case

• Section 3 Sex Discrimination Act 1975

• Articles 2 and 3(2) of the EC Treaty
• Articles 1, 2, Twenty-Third and Twenty-Fourth recitals of the Recast Directive No. 2006/54/EC
• Article 5(1) of Directive 76/207/EEC
• Articles 2.1, 2.7. 5.1 of Council Directive No.76/207 (repealed)
• Article 10, Fourth and Eighth recitals of Council Directive No. 92/85/EC (The Pregnant Workers Directive)
• Council Directive 2002/73/EC
• Articles 1 and 2 of the Framework Directive No. 2000/78/EC

Summary of the case

The Claimant claimed he was dismissed from his employment less than a month after, because of his partner’s pregnancy. He initially filed a claim before the Employment Tribunal contending unfair dismissal and sex discrimination. Contrary to the Claimant’s claim, the Respondents stated that he was dismissed based on non-performance. The Employment Tribunal rejected the Claimant’s claim as it contained allegations of sex discrimination on the grounds of a woman’s pregnancy, for which no protection from associative discrimination existed under national law. He filed an appeal with the Employment Appeal Tribunal (EAT) against the Tribunal’s decision. He urged the EAT to apply to his case the ECJ’s decision in Coleman v Attridge Law wherein the ECJ established the principle that disability discrimination included associative discrimination against a disabled person’s principal carer. He argued that the definition of discrimination in Article 2(2)(c) of Directive 2006/54/EC requires the EAT to read associative discrimination into the provision of Section 3A Sex Discrimination Act 1975. The EAT held that European law does not require such a reading and the Act does not protect associative discrimination on the ground of a partner’s pregnancy; the relevant European law only protects direct discrimination against pregnant women and not associative discrimination. The EAT concluded that the matter was clear and need not be referred to the ECJ. The Court distinguished the Coleman case from the present case and did not follow the ECJ’s decision, stating that the findings therein do not support the Claimant’s claim.

• Administrative judicial enforcement

Annulment of the administrative decision of the ET.

The EAT categorised the principal issues as: (1) Whether associative discrimination on the ground of sex is prohibited under domestic law: Section 3(A) Sex Discrimination Act 1975; (2) Whether European law requires it to interpret Section 3A broadly to accommodate the Claimant’s claim of associative discrimination; and (3) Whether the matter required reference to the ECJ for a preliminary ruling.

The EAT commenced by analysing the relevant provisions of European law. In answering the questions above, it affirmed that Section 3(A) does not prohibit associative discrimination on the ground of sex but only protects pregnant women from direct sex discrimination because of the unique biological condition of women. The Court emphasised that European legislation and case law recognise and protect the specific biological feature of women of childbearing. As such, dismissal of a woman on the ground of pregnancy is prohibited as it could damage her biological and mental state leading to her having an abortion. The court added that the EAT only allowed associative discrimination in the two cases cited by the Claimant based on specific statutory provisions and that the principle of associative discrimination is not all-encompassing.

The Court proceeded to distinguish the ECJ’s case of Coleman v Attridge Law vehemently relied on by the Claimant for his claim of associative discrimination. The Court concluded that the decision was inapplicable to the Claimant’s case on 4 grounds, viz:

1. While the Pregnant Workers’ and the recast Directives protecting pregnant women specially applied to the present case, the ECJ’s case concerned the Framework Directive - the directive prohibiting discrimination on all other grounds but sex.
2. The definition of discrimination in Article 2(2)(c) of the recast Directive was not intended to cover discrimination against a pregnant worker’s partner.
3. Protection for associative discrimination on the ground of a woman’s pregnancy was not intended by the differences in the wordings of Article 2(2)(a)(b) and (c) of the recast Directive. In defining discrimination, while Articles 2(2)(a) and (b) contain ‘any less favourable treatment’ of a “person”, Article 2(2)c) used the word ‘women’ in place of person. The court admitted this difference might be of some importance but the provision would have been express if it intended protection to “persons in relation to a woman’s pregnancy”. The wording of Article 2(a) of the Framework Directive applied in the Coleman case is broader and not limited to direct discrimination as it allows a broader interpretation such as associative discrimination based on disability. The objective of the Directive would have been defeated if associative discrimination was not applied to the Coleman case because the link between Ms. Coleman’s circumstance and the protected subject was evident; she was her disabled son’s principal carer. This, the court pointed out, was absent in the present case.
4. The recast Directive only protects pregnant women and prohibits dismissal on the ground of pregnancy and maternity to protect the woman and the foetus. The court added that even the ECJ would not uphold the Claimant’s claim for associative discrimination.

The Court concluded that European law does not requires it to interpret Section 3A broadly to accommodate the Claimant’s claim of associative discrimination. The court noted that the objective of Section 3 is to provide for equal treatment where men and women are not biologically equal and that paternity leave is the only entitlement men are provided by European and domestic laws in relation to a woman’s pregnancy and maternity.

Role of the Charter and role of the general principles on enforcement

Although it was not discussed explicitly by the Employment Appeal Tribunal, Article 21 CFREU is relevant to this case. The personal scope of the prohibition of discrimination in Article 21 and whether or not it covers discrimination by association was discussed by the CJEU in CHEZ Razpredelenie Bulgaria (C-83/14) shows the relevance of the question in the present national case to the Charter.

Section 3A (1) of the Sex Discrimination Act 1975

“3A (1) ...a person discriminates against a woman if – (a) at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably…”

Regulation 4 Paternity and Adoption Leave Regulations 2002 SI 2002/2788

“Entitlement to paternity leave: birth 4.—(1) An employee is entitled to be absent from work for the purpose of caring for a child or supporting the child’s mother…”

Employment Rights Act 1996 Section 80A

“Complaint to employment tribunal. (1) An employee may present a complaint to an employment tribunal that his employer— (a)has unreasonably postponed a period of parental leave requested by the employee, or (b)has prevented or attempted to prevent the employee from taking parental leave…”

The Charter was not discussed in the national case. This may partially be due to the fact that the main CJEU case being discussed (Coleman) was heard before the Charter became binding in 2009.

• Effectiveness

The effective protection of the right of non-discrimination was discussed only to the extent of the protection of pregnant women during pregnancy and maternity against direct discrimination on this ground. The court emphasised that Member States must continue to afford special protection to women because of their special biological status as this protection is deserving and necessary (paragraph 37). To do otherwise, according to the court, would amount to unequal treatment between men and women.

Also, the Court started its analysis in paragraph 9 by stating that 'Equality between men and women is one of the fundamental principles of EC law', before it went further to trace the history behind prohibiting sex discrimination against pregnant women.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-32/93, Webb v EMO Air Cargo
• CJEU C-394/96, Brown v Rentokil

Conform interpretation with EU law as interpreted by the CJEU.

The purpose of the judicial dialogue in the present case was to distinguish the facts of an ECJ decision establishing a principle from the case of the Claimant, who had urged the court to apply the decision to his case. The said decision was analysed and the differences were identified for the court to reach a contrary decision. The Court also distinguished its earlier decisions wrongly cited by the Claimant to hold that the decisions were inapplicable to the present case as there was no room for a straightforward analogy. Relevant ECJ cases were referenced to reach the decision that protection afforded a pregnant woman did not envisage the form of associative discrimination contended by the Claimant.

Continued special protection of pregnant women and prohibition of their dismissal on the ground of pregnancy and maternity. No associative discrimination based on this.

Additional notes on the decision

As a sub-category of the Area of Law non-discrimination: Unfair dismissal; Associative discrimination based on partner’s pregnancy.