Pregnancy related sickness and discrimination
Labour & European Law Review Weekly Issue 13 - August 1997 06 August 1997
Handels-og Kontorfunktionaerernes Forbund i Danmark, acting on behalf of Helle Elisabeth Larsson v Dansk Handel & Service (Larrson v Fotex) European Court of Justice 29 May 1997
Stephenson v F A Wellworth & Co Limited (Northern Ireland Court of Appeal) (DCLD 32 Summer 1997)
The European Court of Justice has once again visited the issue of when the dismissal of a woman for a pregnancy related illness will breach the Equal Treatment Directive. In Larrson v Fotex the court was asked whether the Equal Treatment Directive outlaws an ill health dismissal where the ill health is pregnancy related, arose during pregnancy and continued during the maternity leave, but where the dismissal takes place after the end of maternity leave.
The ECJ had previously ruled (in Hertz  IRLR 31) that the dismissal for a pregnancy related illness, where the illness did not arise until after the end of Ms Hertz's maternity leave and successful return to work, was not a breach of the Equal Treatment Directive.
The ECJ has adopted the same reasoning in rejecting Ms Larrson's claim: pregnancy related ill health dismissals outside pregnancy and the maternity leave period do not automatically fall foul of the Equal Treatment Directive regardless of whether the illness started during pregnancy. Although some disorders are specific to one sex or another, the only question is whether a woman is dismissed because of sickness absence in the same circumstances as a man. If that is the case, then there is no direct discrimination on grounds of sex.
Where the dismissal is outside the pregnancy and maternity leave period, one must compare the treatment of the woman to that of a sick man. It will also always be relevant to consider the fairness of an ill health dismissal where the Applicant has more than two years service at the effective date of termination.
In Larrson, the ECJ reiterated that sickness absence during maternity leave cannot be taken into account as grounds for a subsequent dismissal. To do so would be a breach not only of the Equal Treatment Directive but also the Pregnant Workers Directive, although Ms Larrson's case arose before the implementation of the Pregnant Workers Directive.
But what of the position when dismissal for a pregnancy related illness occurs during pregnancy? There is conflicting UK case law. In Brown v Rentokil, IRLR  211 the Scottish Court of Session held that the employee's illness was the reason for her dismissal and it was not relevant that the precise reason for that illness was her pregnancy, which is capable of affecting only women. This case has been referred to the European Court of Justice.
In the meantime the Northern Ireland Court of Appeal in Stephenson v F A Wellworth & Co, rejected this reasoning and held that an illness arising out of and occurring during pregnancy is to be treated in the same way as the pregnancy itself. This is the correct approach.
Where a dismissal for a pregnancy related illness occurs during pregnancy, that dismissal is likely to be in breach of the Equal Treatment Directive, Pregnant Workers Directive, Sex Discrimination Act and Section 99 of the Employment Rights Act 1996.
Harassers: do not pass go, go straight to jail
The Protection from Harassment Act 1997 came into force on 16 June and now victims of harassment will be able to claim damages, apply for a civil injunction to prevent it continuing or even prosecute through the criminal courts.
The Act creates a civil wrong of harassment, and this provides a new remedy for those facing harassment. Whilst the Act is primarily aimed at stalking, it will also cover those suffering harassment at the workplace on whatever grounds - sex, race, sexual orientation, disability or bullying.
The Act does recognise that certain lawful activities could be caught by its provisions and therefore provides defences where the contact was pursued for the prevention and detection of crime, or under enactment or rule of law, or where acting reasonably in the particular circumstances of the case. This "reasonableness" defence is likely to be of most relevance in employment related cases where employers seek to justify oppressive actions on the grounds of the employee's competence or conduct.
Cases can be brought in the ordinary civil courts against a harasser for damages for loss or injury suffered and for an injunction to restrain future conduct. The Act does not specifically define what sort of behaviour amounts to harassment, only that it includes a course of conduct (including speech) which is alarming or causes distress to the person on at least two occasions. Although the harasser should, or ought to know that the behaviour in question is harassment, the test to be applied is what a reasonable person would think in possession of the same information. Applicants will have to prove their cases on the balance of probabilities. If an injunction is broken, it could result in criminal sanctions of up to five years imprisonment and/or an unlimited fine.
The Act recognises that harassment can be an extremely serious matter and so in addition creates a criminal offence of causing another to fear, on at least two occasions, that violence will be used, and the perpetrator knows or ought to know that it will cause the other to fear on each of those occasions. If a reasonable person in possession of the same information would expect fear of violence to result from the behaviour in question, then that is enough to prove the case.
The maximum penalty for this offence is five years imprisonment and/or an unlimited fine. The court can also make an order similar to an injunction to protect the victim and award damages for the distress caused in either civil or criminal cases.
An action must be commenced within a six year period, which contrasts with the shorter three year period for bringing personal injury actions, and sharply to the three month period for lodging claims with an Industrial Tribunal. The remedies provided by this Act are completely outside the scope of Industrial Tribunal proceedings and may in certain cases allow victims of workplace harassment to bring claims against individuals long after the time to bring Industrial Tribunal proceedings has passed.
There is nothing which precludes bringing an Industrial Tribunal claim against the employer (within time limits) and at the same time seeking damages and/or an injunction under the Act against the perpetrator.
The Act goes further than the provisions of the Public Order Act 1984 as amended by the Criminal Justice and Public Order Act 1994 which made intentional harassment a criminal offence. The big difference is that it is necessary to prove that the harasser intended to harass, whereas under the new Act the test is wider by looking at the behaviour through the eyes of the reasonable person. It also means that victims can, instead of relying solely on the criminal law to protect them, take their own civil action without having to wait for police intervention.
Extending the working time directive
The European Commission is consulting on proposals to extend the Working Time Directive to transport workers and junior doctors. Comments must be sent to the Commission by 31 October 1997.
The Working Time Directive was adopted in 1993 and came into force at European level on 23 November 1996.
The Conservatives unsuccessfully challenged the Directive at the European Court of Justice and failed to implement its provisions. Labour will soon be publishing its proposals for implementation.
The original Directive applies to "all sectors of activity" except "air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training". The Commission estimates that this excludes 5.6 million European workers from the scope of the Directive. The precise number affected by the exclusion depends whether one accepts the Conservatives' controversial assertion that all workers in those sectors are excluded from the Directive, whatever their jobs. On the Tory interpretation, employees in shops at airports would not be protected by the Directive because they were employed in the transport sector. This is absurd.
The Commission proposes "a differentiated approach", which would distinguish between rights given to non-mobile workers and rights given to mobile and offshore workers.
Under this approach, all non-mobile workers would be covered by all the provisions of the Directive concerning breaks, rest periods, holidays, maximum weekly working time, night working and adapting work to the worker. The legislation would allow for flexibility to take account of the need for continuity of service and operational requirements.
Provisions on paid leave, health assessments for night workers, guaranteed adequate rest and a maximum number of annual working hours would apply to all mobile and off-shore workers. There would be specific legislation concerning working time and rest periods for each sector or activity.
It is entirely right that workers in these sectors should be protected against excessive hours and inadequate rest, particularly when one takes into account the health and safety of the workers themselves and the travelling public.
One can but endorse the view of the European Commissioner, Padraig Flynn, that "it is very difficult to believe that firms who have to rely on employees working excessively long hours can be good for the global economy. Minimum standards regarding the protection of health and safety of employees are a key element in the search for improved competitiveness. This is good for employment in the long-term."