Webb v Emo Air Cargo (UK) Ltd (No 2)

An employer directly discriminates on grounds of sex by dismissing a woman employed for an indefinite period because pregnancy will make her temporarily unavailable when her services are particularly required. Under sections 1(1)(a) and 5(3) of the Sex Discrimination Act 1975, pregnancy is a relevant circumstance because it cannot be present in the case of the hypothetical male comparator.

This construction gives effect to the equal-treatment requirements of articles 2(1) and 5(1) of Council Directive 76/207/EEC. The position may differ where employment is for a fixed period throughout which pregnancy will make the woman unavailable.

The appellant was employed indefinitely with a view initially to replacing another employee during maternity leave. Shortly after her appointment, the appellant discovered that she too was pregnant and would be absent during the relevant period. The employer dismissed her.

The Industrial Tribunal, Employment Appeal Tribunal, Court of Appeal and initially the House of Lords concluded that the dismissal was not unlawful under the Sex Discrimination Act 1975. The House referred a question to the Court of Justice of the European Communities. Its preliminary ruling, reported at [1994] QB 718, held that articles 2(1) and 5(1) of Council Directive 76/207/EEC precluded the dismissal of an employee recruited for an unlimited term in those circumstances.

The issue on the resumed appeal was whether sections 1(1)(a) and 5(3) of the 1975 Act could be construed consistently with that ruling.

1. Appeal allowed unanimously. Lord Keith of Kinkel delivered the leading speech. Lord Griffiths, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley agreed with his reasons. The orders of the Court of Appeal and Employment Appeal Tribunal and the Industrial Tribunal's decision were set aside. The case was remitted to the Industrial Tribunal to assess compensation.

2. Per Lord Keith, articles 2(1) and 5(1) of Council Directive 76/207/EEC precluded the dismissal. Pregnancy could not be compared with a man's incapacity for medical or other reasons. The appellant's inability to undertake the replacement work was temporary when measured against her employment for an indefinite period.

3. Sections 1(1)(a) and 5(3) of the Sex Discrimination Act 1975 had, so far as possible, to be construed consistently with that ruling. Where a woman employed for an indefinite period would be temporarily unavailable at a particularly important time because of pregnancy, the pregnancy was a relevant circumstance in her case. It could not be present in the case of the hypothetical male comparator. Her dismissal therefore constituted unlawful sex discrimination.

4. Lord Keith qualified the reasoning adopted in the House's earlier proceedings, reported at [1993] 1 WLR 49. That reasoning had treated unavailability for work as the relevant circumstance and the pregnancy causing it as irrelevant. In an indefinite-employment case, the statutory comparison instead required pregnancy itself to be treated as relevant.

5. Lord Keith left open the position where a woman is denied employment for a fixed future period throughout which pregnancy would make her unavailable, or where discovery of pregnancy causes cancellation of such a fixed-term engagement. The European ruling emphasised the indefinite duration of the contract and did not determine those hypothetical situations.

1. House of Lords: On the resumed appeal, unanimously allowed the appeal, set aside the orders and decision below, and remitted the case to the Industrial Tribunal to assess compensation: [1995] UKHL 13; [1995] 1 WLR 1454.

2. Court of Justice of the European Communities: On a preliminary reference, ruled that articles 2(1) and 5(1) of Council Directive 76/207/EEC precluded the dismissal of an employee recruited for an unlimited term in the circumstances described: [1994] QB 718.

3. House of Lords: In the earlier proceedings, upheld the domestic construction but referred the Community-law question for a preliminary ruling: [1993] 1 WLR 49; [1993] ICR 175.

4. Court of Appeal, Employment Appeal Tribunal and Industrial Tribunal: Each had concluded that the dismissal did not amount to unlawful sex discrimination. Their relevant orders and decision were set aside by the House.