Kulikaoskas v MacDuff Shellfish & Ors

Section 3A of the Sex Discrimination Act 1975 does not protect a man from less favourable treatment because of another woman’s pregnancy. Pregnancy discrimination forms a separate code concerned with protecting the pregnant woman and foetus from the specific physical and mental harms associated with pregnancy and maternity. The associative-discrimination reasoning in Coleman was not automatically transferable from disability to pregnancy. The wording and history of the relevant European legislation did not require a broader interpretation of section 3A. The Employment Appeal Tribunal therefore declined to extend the statutory protection by interpretation and made no reference to the European Court of Justice.

The claimant alleged that his employer dismissed him because he had informed his supervisor that his partner was pregnant and had assisted her with lifting heavy weights. His partner, who was also dismissed, brought her own pregnancy-discrimination claim.

The Employment Tribunal refused to accept the claimant’s claim for sex discrimination. The claimant appealed, arguing that section 3A of the Sex Discrimination Act 1975 should be interpreted, in conformity with European law, to cover associative discrimination arising from another person’s pregnancy. The central issue was whether European law required protection for a person treated adversely because of the pregnancy of an associated woman.

1. Appeal dismissed. The claim was remitted to the Employment Tribunal to proceed as appropriate.
2. On its ordinary wording, section 3A of the Sex Discrimination Act 1975 prohibited less favourable treatment of a woman during the protected period on the ground of her pregnancy. It did not prohibit treating a man less favourably because of a woman’s pregnancy.
3. Pregnancy and maternity discrimination constituted a separate statutory and European code. The purpose identified in the legislation and case law was to protect the pregnant woman and foetus from the physical and mental harms associated with pregnancy, including the risk of abortion. The materials did not establish a wider concern requiring protection of every person associated with a pregnant woman.
4. Coleman v Attridge Law [2008] IRLR 722 was authority that, in a disability claim under the Framework Directive, the claimant need not herself have the disability. It did not establish that associative discrimination applied equally to pregnancy. The Pregnant Workers Directive and the recast Directive had a different history and purpose, and the recast Directive’s reference to a “woman” in relation to pregnancy was significant.
5. The domestic cases relied on concerning associative discrimination turned on the wording of their particular statutes. They did not establish a general principle of all-encompassing associative discrimination.
6. The relevant European law was sufficiently clear. It did not create a reasonable doubt requiring a reference to the European Court of Justice. The provision for paternity leave under Article 16 of the recast Directive, section 80A of the Employment Rights Act 1996 and the Paternity and Adoption Leave Regulations 2002 showed that related rights for men had been addressed separately.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s refusal to accept the sex-discrimination claim was dismissed. The claim was remitted to the Employment Tribunal to proceed as appropriate.