Walter v Secretary of State for Social Security

The equal-treatment principle does not mean that every disadvantage connected with pregnancy is direct sex discrimination. The court must identify the reason for the denial or restriction of the benefit. Where the operative rule applies to students generally, and the claimant’s ineligibility arises from student status rather than pregnancy, the rule is not directly discriminatory merely because pregnancy led the claimant to take leave of absence. A difficult choice between retaining student status and claiming a benefit may amount to hardship, but hardship is not itself discrimination. The court left open whether an indirectly discriminatory effect could be established, and declined to decide objective justification because no direct discrimination was proved.

The respondent was a full-time university student who took leave of absence because her pregnancy coincided with the expected period of her final examinations. Under the Jobseeker's Allowance Regulations 1996, a person remained a full-time student until abandoning or completing the course and was therefore treated as unavailable for employment. She was refused income-based jobseeker's allowance while retaining her student status.

The Social Security Commissioner held that the Regulations directly discriminated against pregnant students contrary to Directive 79/7/EEC and remitted the case for further consideration. The Secretary of State appealed. The central issues were whether the Regulations directly discriminated on grounds of sex and, if so, whether the discrimination was objectively justified.

1. Appeal allowed. The Court of Appeal set aside the Commissioner’s order. There was no order for costs, and permission to appeal to the House of Lords was refused.
2. The relevant statutory scheme excluded a person from jobseeker’s allowance while he or she remained a full-time student during the period of study. The definitions continued that status during an interruption of the course until abandonment, dismissal or completion. The operative cause of the respondent’s ineligibility was therefore her status as a student, not her pregnancy.
3. Keene LJ gave the principal reasoning. Robert Walker LJ agreed with both judgments, and Peter Gibson LJ agreed while adding reasons. Direct discrimination required the adverse treatment to be because of pregnancy or sex. A pregnant non-student could claim the allowance, while a student could not claim it whether pregnant or not. The causal link between pregnancy, the decision to take leave, and the continuing student status was insufficient to establish direct discrimination.
4. The court rejected an unrestricted reading of Webb. That decision concerned dismissal because of pregnancy in an employment relationship, including the temporary nature of the pregnancy-related inability and the indefinite duration of the employment. Hertz, Gillespie and R v South Bank University, ex parte Coggeran showed that pregnancy-related disadvantage does not invariably constitute discrimination, and that employment authorities cannot simply be transposed to education.
5. Nolte supported distinguishing direct from indirect discrimination in the social-security field. The respondent advanced only direct discrimination; whether the Regulations had a disproportionate indirect effect on women was not decided.
6. Since no direct discrimination was established, the court did not decide objective justification. Keene LJ expressed some doubt that justification could necessarily be shown, while treating the issue as inappropriate for firm determination.

• Court of Appeal: Allowed the Secretary of State’s appeal and set aside the Social Security Commissioner’s decision. Permission to appeal to the House of Lords was refused.
• Social Security Commissioner: Held that the Jobseeker's Allowance Regulations 1996 directly discriminated against pregnant students contrary to Directive 79/7/EEC, and remitted the case for further consideration.