Dismissal of pregnant worker seen as sex bias

first_imgRelated posts:No related photos. Previous Article Next Article Dismissal of pregnant worker seen as sex biasOn 6 Nov 2001 in Personnel Today A recent European ruling found in favour of a fixed-term worker dismissed onthe grounds of her pregnancyIn Tele-Danmark A/S v Handels-og Kontorfunktionaerenes Forbund I Danmark actingon behalf of Marianne Brandt-Nielsen (4 October 2001) the European Court ofJustice considered whether an employer who dismissed a woman employed on afixed-term basis for pregnancy-related reasons is in breach of the EqualTreatment directive. In June 1995 Brandt-Nielson, the complainant, was recruited by Tele-Danmarkfor six months from 1 July 1995 to work in its mobile phones customer servicesdepartment. At her interview it was agreed that the complainant would have toundergo a training course for the first two months of her contract. In August 1995 Brandt-Nielson told her employer she was pregnant andexpected to give birth in early November. It was accepted that she knew she waspregnant when she was offered the job. Shortly afterwards, on 23 August, she was dismissed with effect from 30September on the grounds that she had not told her employer she was pregnantwhen she was recruited. Under the collective agreement which was relevant to the complainant’semployment she was entitled to paid maternity leave starting eight weeks beforethe expected birth date. That period started on 11 September while she wasstill working for her employer. On 4 March 1996, Brandt-Nielson’s trade union brought proceedings in thelocal court claiming that the complainant’s dismissal was in breach of both thenational law on equal treatment and Article 5(1) of the Equal Treatmentdirective. This provides that the principle of equal treatment shall apply to”working conditions, including the conditions governing dismissal”. The local court rejected the claim on the ground that the complainant hadfailed to state that she was pregnant at her interview. That decision wasoverturned on appeal, however, on the grounds that it was not disputed that thecomplainant was pregnant at the time and that her dismissal was linked topregnancy. On further appeal the European Court was asked whether Article 5(1) of theEqual Treatment directive and Article 10 of the Pregnant Workers directiveapplied where: – The woman was recruited as a temporary worker for a limited period – When she entered into the contract of employment, the worker knew she waspregnant but did not inform the employer – The worker’s pregnancy meant that she was unable to work for a significantpart of her period of employment. ECJ ruling The ECJ ruled that both Article 5(1) of the Equal Treatment directive andArticle 16(1) of the Pregnant Workers directive should be interpreted as precludinga worker from being dismissed on grounds of pregnancy even where she isrecruited for a fixed period and failed to inform her employer she was pregnantat the time of her recruitment. It was also of no relevance that she was unableto work for a substantial part of the contract. In Webb v EMO Air Cargo, 1995, the House of Lords left open the possibilitythat the dismissal of a fixed-term worker might not be in breach of the EqualTreatment directive or the Sex Discrimination Act. The ECJ’s answer in theBrandt-Nielson case makes it clear that this is not so. Key points – The dismissal of an employee who is employed under a fixed-term contracton the grounds that she is pregnant, or for a pregnancy-related illness, is inbreach of both the Equal Treatment directive and the Pregnant Workersdirective. – The fact that the contract is for a fixed term and that the absencethrough pregnancy is likely to be for a substantial period of the fixed termmakes no difference. – The Sex Discrimination Act is likely to be interpreted in such a manner asto give effect to European law. By Anthony Korn  a barrister at199 Strand Chambers Comments are closed. last_img read more