Pregnancy and Discrimination at the Time of Employment
Refusal of Appointment
In answering the question, the Court identified that “only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex.” The importance of the decision is twofold. Firstly, the court did not look into the motives behind the dismissal (ie. the financial loss that the employer would have suffered) and secondly, the court did not compare pregnant women with an ill man, rather it identified that “the question whether the refusal to employ a woman constitutes direct or indirect discrimination depends on the reason for that refusal.”
A few years later, in the case of Silke-Karin Mahlburg v Land Mecklenburg-Vorpommern (‘Mahburg’), the question that was referred to the ECJ was whether there is unlawful discrimination on grounds of sex within the meaning of Article 2(1) of the Equal Treatment Directive. The plaintiff’s employer rejected her appointment due to a relevant national law that specified that pregnant women cannot be employed in areas where they would be exposed to harmful effects. The court followed the judgment in Deker and held that the refusal was unjustifiable.
From the facts of the two cases it can be said that a refusal from an employer to appoint a pregnant woman to a position (where that woman was a suitable candidate) would amount to direct discrimination. In addition, as both cases pointed out, whether there is discrimination or not, will depend on the reason for that refusal itself and motives behind the refusal are irrelevant. On the other hand, in Mahburg the court may have introduced a possible justification for direct discrimination. This is because, the court took into account the fact that the period that she would have been unable to work was relatively small compared to the work life position. Therefore, implying that if the contract for employment was a fixed period then a refusal due to health and safety reasons could have been justifiable.
In the case of Caisse Nationale D’assurance Vieillesse Des Travailleurs Salariés (CNAVTS) v Evelyne Thibaul (“Thibault”), Mrs Thibault was on leave from work for 6 months due to both sickness and pregnancy. The question was whether the fact that Mrs Thibault’s performance was not assessed, deprived her from the opportunity for promotion. The Court specified that the purpose of Article 3(1) and Article 5(1) of the Equal Treatment Directive, is to ensure equal treatment between men and women without discrimination on grounds of sex. Therefore, it concluded that “the right of any employee to have their performance assessed each year and, consequently, to qualify for promotion, forms an integral part of the conditions of their contract of employment”and that the non-assessment of the performance constituted a direct discrimination. This case also led to the formulation of Article 15 of the Recast Directive and it is considered a direct discrimination not to assess the performance of a worker due to pregnancy leave.
Adaptation at the workplace mainly deals with the provisions of the Pregnant Workers Directive. In the Directive’s preamble, it is specified that pregnant workers, workers who have recently given birth and workers who are breastfeeding should not engage to activities that may pose risk. The Directive imposes a duty to employers to assess such a risk (Article 4), communicate it to the female worker and take appropriate measures to protect her (Article 5). The preamble specifies that a provision should be made prohibiting an employer to dismiss an employee when exercising her health and safety protection rights from the date of her pregnancy up to the end of her maternity leave.
In the case of Berit Høj Pedersen v Fællesforeningen, the court was asked to interpret the duties of the employer as they emerge from the Directive. The Court focused on the rules specified under Article 4 (assessment of information) and Article 5 (actions upon the result of the assessment) of the Directive. The Court identified that based on Article 5 the employer must make temporary amendments to the working conditions or hours to accommodate the pregnant employee and only if such a move is not possible the worker should be granted leave. It was held that is contrary to the Directive’s aim for a national legislation to allow an employer to “send home a woman who is pregnant, although not unfit for work, without paying her salary in full when he considers that he cannot provide work for her.” It follows from the decision of the case, that health and safety provisions cannot work to the detriment of the employee, rather it’s the employer’s duty to assess and amend the working condition to fit the needs of the pregnant employee.
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