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Pregnancy and maternity discrimination
In Hardman v Mallon, t/a Orchard Lodge Nursing Home, the EAT holds that a failure to carry out a risk assessment in respect of a pregnant employee as required by the Management of Health and Safety at Work Regulations 1999 amounts to unlawful sex discrimination. This is because carrying out a risk assessment is one of the ways in which a woman's biological condition during and after pregnancy is given special protection.
This month's case round up in brief.
In McGuigan v TG Baynes & Sons, the EAT holds that an employee suffered unlawful direct sex discrimination when her employer failed to consult her over her impending redundancy on the ground, among others, that she was absent on maternity leave - a pregnancy-related reason.
In Day v T Pickles Farms Ltd, the Employment Appeal Tribunal (EAT) says that an employer should not wait for written notification of an employee's pregnancy before carrying out a risk assessment, and that its failure to carry out an assessment may have caused the employee detriment within the provisions of the Sex Discrimination Act 1975.
In Day v T Pickles Farms Ltd, the EAT holds that an employer who failed to make an assessment of the risks to the health and safety of a woman of child-bearing age employed in a sandwich shop no later than the date she started working there, and certainly before she became pregnant, could thereby have subjected her to a "detriment" within the meaning of the Sex Discrimination Act 1975.
A contractual term which requires a woman to undertake to return to work on the expiry of her maternity leave or otherwise to repay any amounts paid to her by her employer over and above statutory maternity pay during that period, does not contravene the equal pay principle contained in Article 119 of the Treaty of Rome and the Equal Pay Directive, rules the European Court of Justice in Boyle and others v Equal Opportunities Commission.
In Handels- og Kontorfunktionaerernes Forbund i Danmark (acting on behalf of Pedersen) v Faellesforeningen for Danmarks Brugsforeninger (acting on behalf of Kvickly Skive), the European Court of Justice rules that certain provisions of Danish law which permit the less favourable treatment in terms of pay of pregnant workers who are incapable of work due to a pregnancy-related illness prior to the commencement of their maternity leave contravene Article 119 and the Equal Pay Directive.
The EC Equal Treatment Directive precludes dismissal of a female worker at any time during her pregnancy for absences owing to pregnancy-related illness, rules the European Court of Justice in Brown v Rentokil Ltd.
A woman who was deprived of the right to an annual performance assessment - and, consequently, of the possibility of qualifying for promotion - because she was on maternity leave was discriminated against on grounds of sex within the meaning of the EC Equal Treatment Directive, holds the European Court of Justice in Caisse Nationale d'Assurance Vieillesse des Travailleurs Salariés v Thibault.
An employer directly discriminates against a pregnant woman contrary to the Sex Discrimination Act 1975 if, having recruited her for an indefinite period, it dismisses her because she will be temporarily unavailable for work at a time when she knows that she will be particularly needed, holds the House of Lords in Webb v EMO Air Cargo (UK) Ltd.
Employment law cases: HR and legal information and guidance relating to pregnancy and maternity discrimination.