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Kulikaoskas v MacDuff Shellfish and anor

It is contrary to the Sex Discrimination Act to discriminate against a woman just because she’s pregnant. In Kulikaoskas v MacDuff Shellfish and anor, the Employment Appeal Tribunal (EAT) held that a man could not bring a pregnancy discrimination case “by association” when he was dismissed for helping his pregnant partner to carry heavy items in the factory where they both worked.

Basic facts

Mr Kulikaoskas worked as a general operator in MacDuff’s shellfish factory from 27 June 2009 to 14 July 2009 when he was dismissed, according to the company, for not processing scallops quickly enough.

However, Mr Kulikaoskas alleged that he was dismissed when he informed his employer that his partner (who worked in the same factory) was pregnant after being asked why he was helping her to carry heavy items.

He claimed that he had been discriminated against “by association” under section 3A of the Sex Discrimination Act which states that “a person discriminates against a woman if at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably……”

Tribunal and EAT decisions

The tribunal, however, dismissed his claim, as did the EAT which ruled that there is no such thing as "associative discrimination" on the ground of pregnancy and maternity.

It said that Mr Kulikaoskas could not rely on the decision of the European Court of Justice in Coleman v Attridge Law (see weekly LELR 83) relating to a woman who successfully claimed disability discrimination “by association” with her disabled son.

Ms Coleman had succeeded, said the EAT, because she had been able to rely on the Framework Directive. Mr Kulikaoskas could not because he relied on the Pregnant Workers Directive which was worded differently and focussed on providing special protection to pregnant women.

The question was whether, under European law (in this case the pregnancy directive and the recast equal treatment directive), the EAT had to read section 3A (which specifically refers to pregnant women) so as to allow for Mr Kulikaoskas’ claim of associative discrimination.

The answer, it decided, was no. The focus of the law, it said, was to protect the “uniquely female state of pregnancy” because of the possible harm (both physical and mental) that could be caused to women if they were discriminated against on the ground of their pregnancy.

There was no indication of any wider risk of unequal treatment, nor any concern expressed in the law or case decisions that protection should be cast wider than the woman herself. Instead, the European Court of Justice had established that the “relevant need” was to protect the pregnant woman and the foetus from actual harm.

As the intention was to provide a means of achieving equal treatment in circumstances where the biological conditions between men and women were unequal, it was not therefore “concerned with the wider objective of promoting conduct that secures the autonomy of women or respect for their gender”.

It declined to make a reference to the European Court of Justice on the basis that the law was clear enough already.