Jiminez Melgar v Ayuntamiento de Los Barrios [2001] IRLR 848
Tele Danmark A/S v Handels-Og Kontorfunktionaerernes Forbund I Danmark (HK) on behalf of Brandt-Nielsen [2001] IRLR 853
Is there an illogicality in the treatment of pregnancy discrimination cases as direct, and not indirect, discrimination? If a person is dismissed by reason of their current or future maternity absence, is that not dismissal because of the absence as opposed to dismissal because of gender? But then if it were to be treated as indirect discrimination, it would leave open the option of a possible justification defence.
The European Court has confirmed that pregnancy discrimination is direct discrimination. Their recent decision of Jiminez Melgar v Ayuntamiento de Los Barrios restates this position in holding that the non-renewal of a fixed term contract is direct discrimination which cannot be justified.
Mrs Jiminez Melgar was employed on a series of fixed term contracts. She claimed that the most recent was not renewed by reason of her pregnancy. The European Court was asked whether the non-renewal of a fixed term contract due to pregnancy was contrary to the Equal Treatment Directive, just as would be the case with the dismissal of a woman with a contract of indefinite duration. In a ruling which is clear in its commitment to the principle of the illegality of pregnancy dismissals, the Court confirms that non-renewal of a fixed term contract is direct discrimination and whatever the circumstances there can be no defence.
The rigidity with which this principle is applied is all the more marked in another recent European Court of Justice decision, Tele Danmark A/S v Handels-Og Kontorfunktionaerernes Forbund I Danmark (HK) on behalf of Brandt-Nielsen. Here, Mrs Brandt-Nielsen took a six month fixed term contract. It was agreed that she would undergo training for the first two months. During her training, she informed her employers that she was due to have a baby in the beginning of the fifth month of the contract. She worked one month after her training, and then was dismissed. Her dismissal was stated to be due to her not having informed her future employers that she was pregnant when she accepted the job, in circumstances when she would in effect only be able to work for a very small part of the fixed term contract.
The Court ruled that notwithstanding the nature and economic loss incurred by the employer, and regardless of whether the contract in question is an open ended one or a short fixed term one, dismissal of a worker by reason of her pregnancy is direct discrimination. The size of the employer also has no relevance to the issue of direct discrimination.
The employer argued that the dismissal was not due to the pregnancy but to two other factors. Firstly, that the employee would be unable to perform a substantial part of the contract by reason of her pregnancy. Secondly, that her failure to inform them of her pregnancy in circumstances when she knew when accepting the job she would be unable to perform a substantial part of it amounted to a breach of the implied duty of good faith. The Court did not accept this argument. The length of the contract had no relevance to the question of whether or not there is direct discrimination. What mattered, was that the dismissal was because of pregnancy: 'the employee's inability to perform her contract of employment is due to pregnancy'.
The blanket application of the principle that pregnancy dismissals are unlawful is welcome. Following the decision of the European Court in Webb v EMO Air Cargo [1994] IRLR 482, the prospect of short term contracts amounting to an exception to the usual pregnancy dismissal rules was always lurking in the background. It was not an attractive option. It would potentially have been open to employers to employ a woman of child bearing age on a fixed term contract so as to be able to dismiss her if she became pregnant. Such an option, following the Melgar and Tele Danmark decisions, becomes clearly unlawful.