Webb v EMO Air Cargo (UK) Ltd (No 1)

The appeal raised whether dismissal of a woman shortly after engagement because she is, or is discovered to be, pregnant and therefore likely to be unavailable at the critical time for which she was recruited amounts to unlawful sex discrimination under the Sex Discrimination Act 1975. The House considered direct discrimination under section 1(1)(a) and indirect discrimination under section 1(1)(b) read with sections 2, 5 and 6. Lord Keith concluded that, on a proper construction of the domestic provisions, the relevant comparison under section 5(3) should be with a hypothetical person of the opposite sex who would be similarly unavailable at the material time, and that the precise reason for unavailability need not be a relevant circumstance; therefore the dismissal as found by the Tribunal did not constitute direct discrimination. The Tribunal had applied the indirect discrimination test and accepted the employer's justification; the House considered the appropriate test of justification in indirect discrimination to be that articulated in Hampson (an objective balance between discriminatory effect and the reasonable needs of the employer) and accepted that the Tribunal's conclusion would inevitably have been the same under that test. Because of relevant European Court of Justice authorities on pregnancy and dismissal under Directive 76/207, the House referred a specific question to the European Court of Justice for a preliminary ruling and adjourned final disposal of the appeal.

The appellant, Ms Webb, had been employed as an Import Operations Clerk subject to probation to be trained to replace another female employee (Valerie Stewart) during Stewart's maternity leave. Soon after starting work Ms Webb informed the employer she thought she might be pregnant. The employer dismissed her on the basis that she would be unavailable at the critical time when Stewart's absence fell due. Ms Webb claimed direct and alternatively indirect discrimination under the Sex Discrimination Act 1975. The Industrial Tribunal found the dismissal was for the reason that she would be unavailable when required and that a man in the same circumstances would have been treated the same; it dismissed her claim. The Employment Appeal Tribunal and the Court of Appeal dismissed further appeals.

The House considered: (i) whether dismissal for pregnancy-related non-availability is direct discrimination under section 1(1)(a) when no actual man in identical circumstances could be compared under section 5(3); (ii) whether the dismissal could amount to indirect discrimination under section 1(1)(b) and, if so, whether the employer's requirement was justifiable; and (iii) the relevance of European authorities and Directive 76/207.

• Nature of the claim: claim of unlawful direct and alternatively indirect sex discrimination (dismissal/refusal of employment) contrary to the Sex Discrimination Act 1975; remedy sought was reversal of dismissal/compensation.
• Issues framed: proper comparator for direct discrimination under section 5(3); whether pregnancy-related dismissal is inherently a sex-based criterion; whether the employer's requirement was justifiable for indirect discrimination; and whether domestic law should be construed in the light of ECJ decisions on the Directive.
• Court’s reasoning: Lord Keith reasoned that the comparison required by section 5(3) can be made with a hypothetical man who would also be unavailable at the critical time and that the precise reason for unavailability is not a relevant circumstance; accordingly the dismissal as found by the Tribunal did not constitute direct discrimination. On indirect discrimination the House accepted the Hampson formulation of justification (an objective balance between discriminatory effect and the employer’s reasonable needs) and agreed with the Court of Appeal that the Tribunal would have reached the same conclusion under that test. Because the European Court of Justice had delivered decisions (Dekker, Hertz/Herz) concerning refusal to employ or dismissal in pregnancy-related contexts, the House referred a specific question to the ECJ for a preliminary ruling to resolve whether, for the purposes of the Directive, dismissal in the particular factual matrix amounted to discrimination on grounds of sex. Final disposal of the appeal was adjourned pending the ECJ’s ruling.

The House concluded that, on the domestic statutory construction advanced by Lord Keith, the dismissal as found by the Tribunal did not amount to direct discrimination because the correct comparator is a hypothetical person of the opposite sex who would be similarly unavailable at the material time; on indirect discrimination the Tribunal’s conclusion (that the employer’s requirement was justifiable) would stand under the accepted Hampson test. However, because of potentially decisive authorities of the European Court of Justice on pregnancy and employment (notably Dekker and Hertz) the House referred a specific question concerning the application of Council Directive 76/207 to the ECJ for a preliminary ruling and adjourned final determination of the appeal pending that ruling.

Industrial Tribunal: claim dismissed; Employment Appeal Tribunal: appeal dismissed; Court of Appeal (Glidewell, Balcombe and Beldam L JJ): appeal dismissed (reported at [1992] 2 All E.R. 43); House of Lords: leave granted and reference to ECJ made; final disposal adjourned pending ECJ ruling.