Case Facts
The appellant, Ms Webb, was engaged by the respondent employer, EMO Air Cargo (UK) Ltd, in July 1987. She had been recruited specifically to replace another employee, Mrs Stewart, who had become pregnant and was due to take three months' maternity leave. The employer required the appellant to begin work immediately so that she could undertake approximately six months of training and be fully prepared to cover Mrs Stewart's absence before Mrs Stewart left to have her baby in February 1988. The appellant was engaged by letter dated 26 June 1987 and commenced work shortly thereafter.
Approximately two weeks after starting work, the appellant discovered that she was herself pregnant. When she informed her employer of this, she was dismissed on 30 July 1987. The employer's position was that the real and significant reason for the dismissal was the appellant's anticipated inability to carry out the primary task for which she had been recruited — namely, covering Mrs Stewart's absence during maternity leave — and that a man recruited for the same purpose would have been similarly dismissed had he informed the employer that he would be unavailable during the relevant period.
The appellant brought a claim alleging sex discrimination under the Sex Discrimination Act 1975. The industrial tribunal dismissed her claim, accepting the employer's reasoning. The Employment Appeal Tribunal (comprising Wood J and others) dismissed the appeal on 14 February 1990. The Court of Appeal (Glidewell, Balcombe and Beldam LJJ) further dismissed the appeal on 20 December 1991. The appellant then appealed to the House of Lords.
The appellant argued that, since only a woman could be pregnant, any woman dismissed for a reason connected to her pregnancy would not have been dismissed but for her sex. She further contended that the European Court of Justice's ruling in Case C-177/88 Dekker v Stichting Vormingscentrum voor Jong Volwassenen — that a refusal to employ a pregnant woman constituted direct sex discrimination — meant that dismissal on the same ground was equally contrary to Council Directive (EEC) 76/207. The House of Lords heard the appeal on 14 and 16 July 1992, with judgement delivered on 26 November 1992.
Held
The House of Lords made three substantive holdings.
Holding (1) — Direct discrimination: The dismissal did not constitute direct unlawful sex discrimination under s 1(1)(a) Sex Discrimination Act 1975. The relevant comparison required by s 5(3) Sex Discrimination Act 1975 is between the treatment accorded to the woman and the treatment that would have been accorded to a man in the same or not materially different circumstances. For the purposes of that comparison, the relevant circumstance was the employee's expected unavailability at the material time. The precise reason for that unavailability — namely pregnancy, a condition capable of affecting only women — was not itself a relevant circumstance. Accordingly, no gender-based criterion had been directly applied, and there was no direct discrimination.
Holding (2) — Indirect discrimination: The appellant had not been indirectly discriminated against under s 1(1)(b) Sex Discrimination Act 1975. Although more women than men were likely to be unable to satisfy the condition of physical availability for the job, and although the appellant suffered a detriment, the reasonable needs of the employer's business — specifically, having someone available to cover the absent employee during her maternity leave — objectively outweighed the discriminatory effect of the condition when the two were balanced against each other.
Holding (3) — Reference to the European Court of Justice: Notwithstanding the domestic findings, the House of Lords considered it appropriate to refer a question to the European Court of Justice for a preliminary ruling before delivering final judgement. The ECJ had previously ruled that a refusal to employ a pregnant woman could amount to direct discrimination, but had not specifically addressed whether Council Directive (EEC) 76/207 was contravened where an employer dismissed a female employee whose pregnancy would render her unable to carry out, at the required time, the particular task for which she had been specifically engaged. That precise question had not been resolved by existing European authority and warranted a reference.
It should be noted that these proceedings formed only the first stage of the litigation. Following the ECJ's ruling in Case C-32/93 Webb v EMO Air Cargo — that dismissal of a pregnant woman engaged for an indefinite period was contrary to the Directive — the matter was remitted to the House of Lords. The House of Lords ultimately held in Webb v EMO Air Cargo (No 2) [1995] that the dismissal was unlawful.
Ratio Decidendi
The ratio of this decision concerns the proper approach to both direct and indirect sex discrimination under the Sex Discrimination Act 1975.
On direct discrimination, the core ratio under s 1(1)(a) and s 5(3) is that the comparator exercise requires identification of the relevant circumstance — here, the expected unavailability of the employee during the material period — without regard to the underlying reason for that unavailability. Because a male employee engaged for the same specific purpose and equally unable to perform that purpose at the required time would have been treated in the same way, the dismissal did not involve the direct application of a less favourable standard to the woman on the ground of her sex. The fact that pregnancy is a condition unique to women did not, of itself, make the dismissal directly discriminatory under domestic law.
On indirect discrimination, the House of Lords approved the balancing test articulated by Balcombe LJ in Hampson v Dept of Education and Science [1990], under which the discriminatory effect of the condition must be weighed against the reasonable needs of the party applying it. The dictum of Eveleigh LJ in Ojutiku v Manpower Services Commission [1982], which had suggested that justification could be established by showing that the employer had good reasons that would be acceptable to right-thinking people, was expressly disapproved.
On the European law dimension, the House of Lords considered both Case C-177/88 Dekker v Stichting Vormingscentrum voor Jong Volwassenen and C-179/88 Handels-og Kontorfunktionoerernes Forbund i Danmark v Dansk Arbejdsgiverforening. Since neither of those authorities squarely addressed the specific situation of dismissal of a woman engaged for a particular temporary purpose she could not fulfil because of her pregnancy, a reference was necessary before final judgement could be given on compatibility with Council Directive (EEC) 76/207.
Obiter Dicta
The House of Lords acknowledged the general force of the appellant's argument that, because pregnancy is a condition unique to women, dismissal for a reason related to pregnancy would ordinarily engage the principle that the employee would not have been dismissed but for her sex. This reasoning had considerable intuitive appeal and would carry significant weight where a woman was employed on a general or indefinite basis. The distinction drawn in this case — between an employee engaged specifically to perform a defined task during a defined period and an employee engaged generally — was presented as critical to the domestic law outcome, and was implicitly left open as a matter capable of different resolution on different facts. This observation proved to be directly relevant to the subsequent proceedings and the ultimate outcome in Webb v EMO Air Cargo (No 2) [1995].