Webb v Emo Air Cargo (UK) Ltd

Where existing European authority did not clearly determine whether pregnancy-related absence during the specific period for which an employee was recruited constituted sex discrimination under Council Directive 76/207/EEC, the House unanimously referred the question to the European Court of Justice under Article 177 and adjourned the appeal.

Lord Keith of Kinkel, whose reasons Lord Browne-Wilkinson adopted, provisionally considered that the domestic comparator was a man who would likewise be unavailable at the critical time. He also endorsed an objective balance between discriminatory effect and business need for indirect discrimination. Those substantive views were not expressly adopted by a majority, and the appeal was not finally determined.

Webb v Emo Air Cargo (UK) Ltd concerned an employee recruited and trained to cover another employee’s forthcoming maternity leave. Shortly after beginning work, she discovered that she too was pregnant and would be absent during substantially the same period. The employer dismissed her because nobody would otherwise be available to perform the work.

The Industrial Tribunal dismissed claims of direct and indirect discrimination under the Sex Discrimination Act 1975. Appeals to the Employment Appeal Tribunal and the Court of Appeal were unsuccessful. The Court of Appeal’s decision was reported at [1992] 2 All E.R. 43.

The central question was whether dismissal in those circumstances was discrimination on grounds of sex contrary to Council Directive 76/207/EEC, even though a male employee requiring absence during the critical period would also have been dismissed.

1. Disposition. The House unanimously referred a question to the European Court of Justice for a preliminary ruling under Article 177 of the Treaty establishing the European Communities. Further consideration of the appeal was adjourned pending the ruling. The House therefore made no final determination of the discrimination claim.

2. Lord Keith’s provisional domestic-law analysis. Lord Keith of Kinkel considered that dismissal or refusal of employment simply because of pregnancy would generally be direct sex discrimination under the Sex Discrimination Act 1975. On the facts under consideration, however, the critical circumstance for the statutory comparison was expected unavailability during the period for which the employee had specifically been recruited. The precise cause of that unavailability was immaterial. A hypothetical man who would also be unavailable during that period supplied the appropriate comparator, and Lord Keith would therefore have found no direct discrimination under domestic law considered alone.

3. For indirect discrimination, Lord Keith accepted that justification required an objective balance between the discriminatory effect of the condition and the employer’s reasonable needs. Although the Industrial Tribunal had used an earlier formulation, it would inevitably have reached the same conclusion because the employer required somebody to cover the other employee’s maternity leave.

4. European law and the reference. Lord Keith explained that Dekker v Stichting Vormingscentrum voor Jong Volwassenen treated refusal of employment because of pregnancy as direct discrimination, while Handels-og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening treated illness arising after maternity leave like other illness. Neither decision clearly addressed an employee unable, because of pregnancy, to perform the particular work during the period for which she had been recruited. A preliminary ruling was therefore sought.

   Lord Browne-Wilkinson expressly adopted Lord Keith’s reasons. Lords Griffiths, Mustill and Slynn expressly agreed with the reference and adjournment, but did not expressly adopt the substantive domestic-law analysis. The unanimous holding is accordingly confined to the reference and adjournment.

1. House of Lords: Unanimously referred the question under Article 177 to the European Court of Justice and adjourned further consideration of the appeal.

2. Court of Appeal: The appeal from the Employment Appeal Tribunal was unsuccessful: Webb v Emo Air Cargo (UK) Ltd [1992] 2 All E.R. 43.

3. Employment Appeal Tribunal: The employee’s appeal was unsuccessful.

4. Industrial Tribunal: Dismissed the claims of direct and indirect discrimination under the Sex Discrimination Act 1975.