Webb v E.M.O. Air Cargo (UK) Ltd (No. 2)

The House of Lords allowed the appellant's appeal and remitted the matter to an Industrial Tribunal for assessment of compensation. The court followed the preliminary ruling of the Court of Justice of the European Communities that Article 2(1) read with Article 5(1) of Council Directive 76/207/E.E.C. precludes dismissal of a woman recruited for an unlimited term to replace another employee on maternity leave when she is shortly afterwards found to be pregnant. The Lords held that, for an indefinite contract, pregnancy is a relevant circumstance which could not be present in the case of a hypothetical man and therefore cannot be treated as a neutral characteristic under the comparative test in section 5(3) of the Sex Discrimination Act 1975 and section 1(1)(a) cannot be construed so as to permit dismissal in those circumstances.

The appellant was employed to replace an employee who would be on maternity leave. Shortly after appointment the appellant was found to be pregnant and was dismissed because the employer required the job-holder to be available during that period. The appellant brought a claim of sex discrimination under section 1(1)(a) of the Sex Discrimination Act 1975. Domestic tribunals and courts (Industrial Tribunal, Employment Appeal Tribunal, Court of Appeal) previously held that the dismissal was not unlawful under the Act. This House referred a question to the Court of Justice of the European Communities under Article 177 of the Treaty to determine whether such a dismissal was discrimination under Directive 76/207/E.E.C.

The Court of Justice ruled that Article 2(1) read with Article 5(1) precludes dismissal of an employee recruited for an unlimited term to replace another during maternity leave when she is shortly thereafter found to be pregnant. The House of Lords considered whether the Sex Discrimination Act 1975 could be construed compatibly with that ruling. The House concluded that in the case of an indefinite contract the fact of pregnancy is a 'relevant circumstance' for the purposes of the comparative test in section 5(3) and so the dismissal amounted to unlawful discrimination under the Directive; the House therefore allowed the appeal and remitted the question of compensation to the Industrial Tribunal.

Key issues framed by the court:

• Whether dismissal of a woman in these facts amounted to discrimination contrary to Directive 76/207/E.E.C. (Articles 2(1) and 5(1)).
• Whether the national statutory test (sections 1(1)(a) and 5(3) of the Sex Discrimination Act 1975) could be read so as to accord with the Directive.
• Whether pregnancy may be treated, for comparison under section 5(3), as equivalent to unavailability for other reasons in the case of an indefinite contract.

The court reasoned that pregnancy is not comparable to illness or other non‑pregnancy unavailability and that Community law's protection for pregnancy must not depend on whether the employee's presence is essential to the undertaking. The Lords accepted the Court of Justice's emphasis on the indefinite nature of the contract and left open the possibility that different considerations might apply to fixed‑term or wholly seasonal engagements.

Appeal allowed. The House followed the Court of Justice's ruling that Article 2(1) read with Article 5(1) of Directive 76/207/E.E.C. precludes dismissal in these circumstances; in order to give effect to that ruling the court held that, for an indefinite contract, pregnancy is a relevant circumstance under section 5(3) of the Sex Discrimination Act 1975 and therefore the dismissal amounted to discrimination. The case was remitted to the Industrial Tribunal to assess compensation.

Industrial Tribunal decision 15 February 1988; Employment Appeal Tribunal decision 14 February 1990; Court of Appeal Order 20 December 1991 (set aside by this House); House of Lords referred a question to the Court of Justice of the European Communities (preliminary ruling given 14 July 1994) and subsequently allowed the appeal on 19 October 1995 ([1995] UKHL 13).