TOPIC 7: CASE LAW Flashcards
Case C-177/88 Dekker v. VJV-Centrum [1990] ECR 3941.
Defendant employer had withdrawn his offer of employment to the claimant when he discovered she was pregnant.
Employer argued his action was justified as her absence during maternity leave would not be covered by insurance & he could not afford to pay for a replacement worker.
ECJ held that the refusal to employ a woman on the grounds of her pregnancy constituted direct discrimination on the grounds of sex.
Such refusal could not be justified on the basis of financial detriment to the employer.
Webb v. EMO Air Cargo (UK) Ltd [1992] 2 All ER 43
Claimant engaged to replace another employee who had become pregnant.
2 weeks after accepting the post she discovered she too was pregnant.
She was dismissed when she informed the employer of this fact.
ECJ held that it contravened the Equal Treatment Directive to dismiss an employee on account of her becoming pregnant.
Case C-109/00 Teledenmark.
fixed term contract
Woman employed on 6 month fixed term contract, 2 months spent on training course.
After commencing employment, woman informed employer that she was pregnant. She was dismissed.
Employer argued that woman could not perform substantial part of her duties & that in failing to mention pregnancy before she was employed, she had violated the principle of good faith.
Availability for work - 2
cannot dismiss pregnant women even if the contract is fixed term and the woman cannot perform a substantial part of her employment
Case C-320/01 Busch
ECJ basing its judgment on Teledenmark, confirmed that a woman is under no duty to tell an employer she is pregnant prior to accepting a job offer or returning to work.
Case C-394/96, Brown v. Rentokil
ECJ held that a woman could not be dismissed at any time during her pregnancy for absences arising from pregnancy-related illnesses.
Availability for work
Could pregnant women be dismissed on the basis that their pregnancy constitutes too large a proportion of the contract?
- no - teledenmark
Case C-179/88 Handels- og Kontorfunktionaerernes Forbund I Danmark (Hertz) v Dansk Arbedjdsgiverforening[1990] ECR I-3979.
The ECJ had to consider if the dismissal of a pregnant employee was also in contravention of the Equal Treatment Directive.
ECJ held that the dismissal of a female employee because of her pregnancy amounted to direct discrimination on the grounds of sex.
The Court also drew a clear distinction between pregnancy and illness: the latter is not an issue that falls under the protection afforded to pregnant employees even where the illness is attributable to pregnancy but manifests itself after the maternity leave.
The ECJ held that there is no reason to distinguish such an illness from any other illness.
Case C-421/92 Habermann-Beltermann v Arbeiterwohlfahrt, Bezirksverband Ndb./Opf, e.V [1994] ECR I-01657
Mrs Habermann-Beltermann, had applied for a job as a night attendant in home for the elderly. She was appointed to the post and signed the employment contract on 23 March 1992. The commencement date of the contract was 1 April 1992. The employment contract was for an indefinite period and one of the specific terms of the contract was that Mrs Habermann-Beltermann was to undertake night-time work only.
From 29 April to 12 June 1992, Mrs Habermann-Beltermann was off work due to illness. According to the medical certificate dated 29 May 1992 she was pregnant. The pregnancy commenced on 11 March 1992, although she was unaware that she was pregnant when she signed her contract of employment.
Her employer sought to terminate the contract of employment because of the prohibition within German domestic law that pregnant employees could not be assigned night-time work and the national court held that this statutory prohibition rendered the employment contract void.
Thus, the employer was not seeking to dismiss the employee solely on the grounds of her pregnancy: rather it was as a consequence of the legislation in place to protect pregnant workers.
The ECJ ruled that despite the existence of this statutory prohibition, the employer could not dismiss Mrs Habermann-Beltermann on the grounds of her pregnancy as her contract was for an indefinite period, therefore the statutory prohibition would not apply to the entire duration of her contract of employment.
Thus, to dismiss her because of her temporary inability to perform her contract, due to pregnancy, would contravene the provisions of the Equal Treatment Directive.
Case C-438/99 Jimenez Melgar v Ayuntamiento de Los Barrios [2001] ECR I-6915.
The ECJ confirmed that Art 10 of the Pregnancy Directive prohibits the dismissal of pregnant workers, irrespective of the duration of the employment contract.
Here, the ECJ had to consider whether the non-renewal of a fixed-term contract was justifiable under Art 10 of the Directive where the employee in question was pregnant.
The ECJ ruled that the non-renewal of a fixed-term contract does not automatically breach Art 10 of the Pregnancy Directive: it is only where it is evident that the reason for the non-renewal of the fixed-term contract is the employee’s pregnancy, i.e. where the non-renewal could amount to a refusal to employ the pregnant worker, that the Article is breached.
As such, the non-renewal would constitute direct discrimination on the grounds of sex in contravention of the Equal Treatment Directive.
The ECJ’s decision in Jimenez Melgar is a clear signal that Article 10 of the Pregnancy Directive 92/85 supersedes the ECJ’s earlier decisions on pregnancy related dismissals under the Equal Treatment Directive.
Art 10 of the Pregnancy Directive prohibits the dismissal of workers during the period from the beginning of pregnancy until the end of maternity leave, save in exception circumstances unconnected with pregnancy.
C-191/03 McKenna-
employer’s sick leave scheme was not discriminatory against female employees even though it made no concessions to women off work with pregnancy-related
C-194/08 Gassmayr v Bundusminister Fur Wissenschaft Und Forschung
junior doctor had to go on a period of enforced health & safety leave during pregnancy - lost ‘on call’ pay allowance
C-471/08 Parviainen-
airline worker transferred to office duties; lost ‘supplementary allowances’
