Webb v EMO Air Cargo (UK) Ltd (No.2)

Factual and Procedural Background

The Appellant was hired by Company A to cover the maternity leave of another employee, referred to here as Employee B. Shortly after beginning work, the Appellant discovered she was also pregnant and would need maternity leave at roughly the same time as Employee B. Company A dismissed her on the ground that it required someone who would be available throughout the relevant period.

The Appellant brought proceedings under the Sex Discrimination Act 1975 (“the 1975 Act”), alleging unlawful dismissal on the ground of sex. An Industrial Tribunal, the Employment Appeal Tribunal and the Court of Appeal all held that, on a conventional construction of the 1975 Act, no unlawful discrimination had occurred. On a first appeal to the House of Lords, the matter was referred to the European Court of Justice (“ECJ”) for a preliminary ruling on the proper interpretation of Articles 2(1) and 5(1) of Council Directive 76/207/EEC (“the Equal Treatment Directive”).

On 14 July 1994 the ECJ ruled that the Directive prohibits dismissal of an employee recruited for an unlimited term who is herself found to be pregnant shortly after recruitment, even where the employer intended her to cover another employee’s maternity leave. The case then returned to the House of Lords, which issued the present opinion, set aside all earlier domestic decisions and remitted the matter to an Industrial Tribunal to assess compensation.

Legal Issues Presented

1. Whether dismissal of a pregnant employee, hired on an indefinite contract to replace another employee during maternity leave, constitutes sex discrimination contrary to the 1975 Act.
2. How the 1975 Act should be construed so as to give effect to Articles 2(1) and 5(1) of the Equal Treatment Directive in light of the ECJ’s ruling.
3. Whether the temporary unavailability of an employee due to pregnancy can be equated with unavailability caused by illness or other reasons for the purpose of the statutory comparison required by the 1975 Act.

Arguments of the Parties

Appellant's Arguments

• Pregnancy is not comparable with illness or non-medical unavailability; treating it as such amounts to direct sex discrimination.
• The correct comparator for the purposes of section 1(1)(a) of the 1975 Act is not a hypothetical man who is temporarily unavailable for unrelated reasons but a man who could never experience pregnancy.

The Respondent did not participate in the later stages of the appeal, and no detailed arguments on its behalf appear in the opinion.

Table of Precedents Cited

Court's Reasoning and Analysis

Delivering the lead speech, Judge Keith summarised the ECJ’s ruling and examined how the domestic statutory test in sections 1(1)(a) and 5(3) of the 1975 Act could be aligned with Community law.

• Statutory comparison. Under section 1(1)(a), discrimination occurs if a woman is treated less favourably than a man “on the ground of her sex.” Section 5(3) requires the circumstances of the hypothetical male comparator to be “the same, or not materially different.” The Court held that pregnancy is itself a relevant circumstance: it is unique to women and therefore cannot be replicated in the comparator’s case.
• Effect of the ECJ ruling. The ECJ had stressed that dismissal for pregnancy is intrinsically sex-based and cannot be justified by operational requirements. The domestic provisions must therefore be construed so that pregnancy cannot be disregarded as an irrelevant reason for unavailability.
• Indefinite vs. fixed-term contracts. The ECJ placed weight on the fact that the Appellant was employed for an unlimited term. The House acknowledged that its reasoning might not automatically extend to purely seasonal or fixed-term engagements but found it unnecessary to resolve those hypothetical situations.
• Outcome under the 1975 Act. Properly construed in line with the Directive, the Act renders unlawful the dismissal of a woman employed on an indefinite contract because she will be temporarily unavailable owing to pregnancy. Accordingly, the earlier domestic tribunals had erred.

Holding and Implications

APPEAL ALLOWED. The orders of the Industrial Tribunal, Employment Appeal Tribunal and Court of Appeal were set aside, and the case was remitted to an Industrial Tribunal to assess compensation. No order for costs was made against Company A; the Appellant’s costs are to be taxed under the Legal Aid Act 1988.

Implications: The decision confirms that, under both the Equal Treatment Directive and the 1975 Act, dismissal connected with pregnancy constitutes direct sex discrimination where the employee is on an indefinite contract. It obliges domestic tribunals to treat pregnancy as a material circumstance in the statutory comparison exercise and limits employers’ ability to rely on operational inconvenience as a defence. The House left open whether the same principle would apply to purely fixed-term or seasonal contracts, signalling a potential area for future litigation but creating no new binding precedent on that point.