Dismissal of pregnant worker seen as sex bias

A recent European ruling found in favour of a fixed-term worker dismissed on
the grounds of her pregnancy

In Tele-Danmark A/S v Handels-og Kontorfunktionaerenes Forbund I Danmark acting
on behalf of Marianne Brandt-Nielsen (4 October 2001) the European Court of
Justice considered whether an employer who dismissed a woman employed on a
fixed-term basis for pregnancy-related reasons is in breach of the Equal
Treatment directive.

In June 1995 Brandt-Nielson, the complainant, was recruited by Tele-Danmark
for six months from 1 July 1995 to work in its mobile phones customer services
department. At her interview it was agreed that the complainant would have to
undergo a training course for the first two months of her contract.

In August 1995 Brandt-Nielson told her employer she was pregnant and
expected to give birth in early November. It was accepted that she knew she was
pregnant when she was offered the job.

Shortly afterwards, on 23 August, she was dismissed with effect from 30
September on the grounds that she had not told her employer she was pregnant
when she was recruited.

Under the collective agreement which was relevant to the complainant’s
employment she was entitled to paid maternity leave starting eight weeks before
the expected birth date. That period started on 11 September while she was
still working for her employer.

On 4 March 1996, Brandt-Nielson’s trade union brought proceedings in the
local court claiming that the complainant’s dismissal was in breach of both the
national law on equal treatment and Article 5(1) of the Equal Treatment
directive. This provides that the principle of equal treatment shall apply to
"working conditions, including the conditions governing dismissal".

The local court rejected the claim on the ground that the complainant had
failed to state that she was pregnant at her interview. That decision was
overturned on appeal, however, on the grounds that it was not disputed that the
complainant was pregnant at the time and that her dismissal was linked to
pregnancy.

On further appeal the European Court was asked whether Article 5(1) of the
Equal Treatment directive and Article 10 of the Pregnant Workers directive
applied where:

– The woman was recruited as a temporary worker for a limited period

– When she entered into the contract of employment, the worker knew she was
pregnant but did not inform the employer

– The worker’s pregnancy meant that she was unable to work for a significant
part of her period of employment.

ECJ ruling

The ECJ ruled that both Article 5(1) of the Equal Treatment directive and
Article 16(1) of the Pregnant Workers directive should be interpreted as precluding
a worker from being dismissed on grounds of pregnancy even where she is
recruited for a fixed period and failed to inform her employer she was pregnant
at the time of her recruitment. It was also of no relevance that she was unable
to work for a substantial part of the contract.

In Webb v EMO Air Cargo, 1995, the House of Lords left open the possibility
that the dismissal of a fixed-term worker might not be in breach of the Equal
Treatment directive or the Sex Discrimination Act. The ECJ’s answer in the
Brandt-Nielson case makes it clear that this is not so.

Key points

– The dismissal of an employee who is employed under a fixed-term contract
on the grounds that she is pregnant, or for a pregnancy-related illness, is in
breach of both the Equal Treatment directive and the Pregnant Workers
directive.

– The fact that the contract is for a fixed term and that the absence
through pregnancy is likely to be for a substantial period of the fixed term
makes no difference.

– The Sex Discrimination Act is likely to be interpreted in such a manner as
to give effect to European law.

By Anthony Korn  a barrister at
199 Strand Chambers

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