A known state of pregnancy does not protect employers from discrimination
liability – even if witheld at interview
A person dismissed or refused employment on pregnancy grounds will have a
claim for sex discrimination based on the principle established in the case of
Webb v EMO Air Cargo (UK) Ltd in 1994, ICR 770.
This case established that an employee did not need to show that she had
been less favourably treated than a man would have been in similar
circumstances due to the fact her dismissal was related to pregnancy. It was
held that reference to a male comparator was inappropriate as pregnancy was a
condition unique to women. As such, the dismissal could not be justified even
by the employee’s inability to fulfil her initial obligations under the
contract.
However, the facts of the case were that Mrs Webb had been recruited to a
permanent role, albeit initially to cover another employee’s maternity leave.
The judgement emphasised that just because it was discriminatory for an
employee on an open-ended contract to be dismissed on account of her intended
absence, it would not necessarily be so in the case of an employee on a fixed
term contract where the maternity leave might blot out all, or a substantial
part of, the intended period of employment.
This month the ECJ considered that question in Tele Danmark A/S v Handels og
Kontorfunktionaerernes Forbund I Danmark (HK) 2001, IDS 696. The employers had
dismissed the employee when they found out that she was pregnant, but stated
that the reason for the dismissal was not the pregnancy as such, but that
because of it she would be unable to perform a substantial part of the fixed
term contract she had agreed.
In addition she had known at the recruitment stage that she was pregnant and
had hidden this from them even though she must have been aware of its impact on
the contract period.
The ECJ rejected the employer’s arguments. It said that the protection
afforded to an employee during maternity leave could not be dependent upon
whether her absence on that leave would cause financial loss to the employer,
or even if her presence over the contract period was necessary to the proper
functioning of the business.
Where does this leave employers? It will mean that even if an applicant
conceals the fact that she is pregnant, and is hence unable to attend the
workplace during all or part of a fixed term contract, she will still be protected
and able to claim discrimination if dismissed, or if the offer of employment is
withdrawn.
Could employers ask candidates if they are aware of any reason why they
cannot work the full contract period during the recruitment process? If so, it
would make not mentioning a pregnancy an outright lie rather than passive
non-volunteering, and thus allow employers to dismiss on the basis of the
deceit involved rather than the pregnancy.
While this might attract the sympathy of the tribunal, it is far from a
guaranteed defence in law since it is, in effect, an admission that had the
employer known she was pregnant, it would not have employed her. This itself
would be a discriminatory stance.
There will often be financial consequences from wasted recruitment costs and
unless there is capacity in the workforce, the whole process may have to be
repeated again. The employee will not generally be entitled to statutory
maternity pay in these circumstances as she will not meet the qualifying
service provisions. However if there is a contractual maternity pay scheme that
is not dependent on a minimum length of service, the employee may have a right
to be paid under it without ever setting foot in the workplace.
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This is a heavy burden for any employer which may tempt some to favour male
applicants for such temporary posts. However, it should be remembered that
discriminating in the recruitment process still creates potential liability for
claims.
By Sue Nickson, a partner and national head of employment law at Hammond
Suddards Edge
