There is a long history of gender discrimination, and gender discrimination is the most general and traditional type of discrimination in various countries of the world. Gender discrimination is not only closely related to the tradition and concept of a country, but also associated with the national economic development level, especially for the condition of labor market. Among the legislations of anti-discrimination of European Union (EU), laws regarding gender discrimination are the most mature and perfect ones. EU has always regarded anti-discrimination as basic social policy and legal principle, and viewed equality of opportunity as the precondition and basis of its freedom and democracy. At the same time, the lawmakers, law-executors, non-governmental organizations, scholars and common citizens all positively participate in and promote the social equality and justice in EU.
Despite the significant process made through equal treatment legislation and the social dialogue, there are still considerable problems for the public to understand and comply with legislation due to the complexity of fact. The paper pays attention to gender discrimination in terms of women’s pregnancy. It mainly discusses whether revoking the offer of employment to Sarah Dickens and the dismissal of Margaret Worthing would breach EU law. Firstly, the paper will introduce related law in gender equality, and the reason why corporations in EU have to comply with these obligations. Secondly, based on laws, case laws and academic views, the paper demonstrates the reason why revoking the offer of employment to Sarah Dickens would breach EU law, while the dismissal of Margaret Worthing shall not take into account the period of her maternity leave. Finally, it will draw out some more general conclusions.
When it comes to discussing gender equality legislation in EU, Article 157 of the Treaty on the Functioning of the EU (TFEU) (former Article 119 of the European Economic Community, former Article 141 of European Community) cannot be ignored. The article establishes the principle that female workers shall be paid equally with male workers. There are certain significant points to be highlighted. Firstly, in Article 157 TFEU, ‘worker’ refers to a person who provide services for and under the direction of another person for a certain period of time, for the sake of gaining remuneration. In this way, the people who are not employed and do not subordinate to others are not “workers” in the sense of Article 157 TFEU. Secondly, in Article 157 TFEU, ‘pay’ not only includes basic pay, but also other occupational pensions such as special bonuses, overtime supplements and travel facilities. Thirdly, under the Article 157 TFEU, any direct and indirect discrimination on the basis of sex in the field of pay are prohibited. Direct discrimination refers to the behavior of repelling or making a difference to a group of people based on their gender.
In the meanwhile, positive action carried to rectify females’ disadvantaged status and provide preferential policy for women as well as real decisive professional demand are the exceptions. Compared to direct discrimination, indirect discrimination tends to be covert and general. It occurs when a group of people are in inferior status compared with people of the other sex, when a sex-neutral criterion is applicated. However, as the defendants are allowed to use objective and provable ground to prove the reason of difference between male worker and female work is objective rather than gender discrimination, it is complex to judge indirect discrimination. Different judgements between the Employment Appeal Tribunal and industrial court in terms of Case 96/80 are the example. Besides, it is important to note that both sex discrimination caused by individual contracts and collective agreement and legislation are prohibited by Article 157 TFEU.
The Recast Directive 2006/54 was adopted in 2006, which bring existing provisions of different sex equality directives and some case law of the Court of Justice of the EU together. Furthermore, the directive can be divided into four sections. Section one introduces the aim of the directive and provides basic definitions involved in gender discrimination, such as sexual harassment, harassment, direct and indirect discrimination. Section two involves with equal pay, treatment regarding access to employment, promotion, working conditions, vocational training and social and occupational security schemes. Section three introduces the implementation of gender equality, such as the burden of proof, relief measures and other general provisions. The last section discusses the review and report and implementation of the directive.
According to Article 14 of Directive 2006/54, any direct and indirect gender discrimination both in the private and public sectors are prohibited. Firstly, female workers and male workers have equal opportunity to get a job and be self-employed, regardless of the condition of recruitment, level of the professional hierarchy and branch of activity. Secondly, all workers are provided with equal chance in gaining professional training and guidance in various levels and types. Thirdly, female workers enjoy equal working and employment conditions with male workers. In other words, equal pay for equal work shall be ensured, and female workers cannot be dismissed on account of their gender. Fourthly, female workers have equal opportunity with male workers to take participate in the organizations which provides benefits or decides important issues of workers.
As mentioned above, there are exceptions for the principle of equal treatment. First is based on certain determining and genuine professional requirements, such as the job of being a wet nurse or actor. Second is due to the protection of female workers, especially for someone who are during the period of maternity and pregnancy. As Article 28(1) of the Recast Directive provides, “This Directive shall be without prejudice to provisions concerning the protection, particularly as regards pregnancy and maternity.” Based on the provision, female workers enjoy specific protection during and after pregnancy, as well as the special relationship with their children. The third exception involves with positive action, which is implemented to make sure the full equality practice between female workers and male workers.
The Directive 79/7 ensures gender equality in terms of statutory social security. On one hand, all the working population includes self-employed persons and employees are protected by the directive. On the other hand, the directive provides protection against risks such as old age, illness, accidents at work and involuntary unemployment.
At the same time, certain exceptions are allowed by the directive. For example, it is legal that female workers and male workers are provided with different pensionable ages in retirement pensions and old-age pensions. male workers and female workers cannot view it as gender discrimination. What is more, it is important to note the advantages resulted from the fact that the persons concerned had sacrificed time in bring up children and even interrupt employment.
Moreover, based on Article 5 of the Recast Directive, female workers are provided with equal opportunity and right with male workers in the access of occupational social security, and the obligation and calculation of contribution, as well as the calculation of benefits. Similarly, the persons protected by the directive cover all working population, and they are protected against the risks such as illness, involuntary unemployment and accident. In addition, certain exceptions exist as well. For example, it is allowed to decide different pensionable age and use different actuarial calculation factors, and the pensions of survivors are not applied to gender equality as well.
Due to the implementation of Directive 2010/41, gender discrimination in an activity in a self-capacity is prohibited. According to the directive, self-employed workers refer to the people and their spouses who use their own efforts to engage in a gainful activity. At the same time, the life partners of self-employed workers are also protected by the directive if they habitually join in the gainful activities of the self-employed workers and engage in similar tasks. It is important to note the differences between the life partners and business partners, and the later ones are not protected based on the directive. With the help of the directive, female self-employed workers have equal right and opportunity with males in terms of establishing, extending and equipping their business. What is more, the directive also enables female self-employed workers, female life partners and female spouses to have sufficient maternity allowance during their pregnancy or motherhood. These female workers who stay in special period are guaranteed to have equivalent allowance with the people who receive when a break in their activities connected with their state of health.
In order to maximize equal opportunity between female workers and male workers. The EU take steps as follow. In the first place, pregnant women are protected completely. Directive 92/85 plays an important part in improving the safety and health of female workers during the period of pregnancy, after childbirth and motherhood. The directive sets the lowest standard of safety and health protection, which is provided for female workers in workplace. According to Article 8 of the directive, pregnant workers have the right to acquire a period of at least 14 weeks’ maternity leave, and at least 2 weeks shall be guaranteed before and after delivery. Based on Article 9 of the directive, pregnant workers are allowed to participate in necessary prenatal examination during working hours and enjoy paid leave. Article 10 of the directive provides that, pregnant women are entitled to free from dismissal from the beginning of their pregnancy to the end of the maternity leave. Meanwhile, employers are not allowed to fire female workers because of their incapacity to work resulted from an illness caused by pregnancy.
At the same time, Article 11 of the directive stresses that, in addition to remuneration, female workers during pregnancy also enjoy other rights provided by labor contract, and they are allowed to enjoy due remuneration or appropriate allowance. Based on the provisions mentioned before, pregnant workers are guaranteed to enjoy adequate rest without fearing of losing job. What is more, Article 4 and Article 7 ensure that, pregnant workers are allowed to keep away from danger or unhealthful jobs. According to Article 4, employers have the obligation to check the situation whether pregnant workers are facing with risky job, timely inform the worker and take appropriate measures to protect the safety of pregnant workers.
At the same time, Article 7 shows that, pregnant workers have the right to refuse to work at night during the period of pregnancy or certain time after delivery if she is able to provide a medical certificate, which indicates that night work is bad for her health and safety. What is more important, according to Article 10 of the directive, unless in exceptional cases not connected with the condition of pregnant workers, employers are not allowed to dismiss female workers from the beginning of their pregnancy to the end of their maternity leave. Furthermore, Article 16 provides that, the employer shall pay the worker compensation if she is dismissed contrary to Article 9 and the dismissal is not set aside.
In the second place, according to the Parental Leave Directive 2010/18, all working population, including female workers, male workers, part-time workers and temporary agency workers are all entitled to an individual right to parental leave based on the birth of a child. In the meantime, they could also enjoy parental leave on the grounds of taking care of a child who is under eight years old. Moreover, the workers who take parental leave are entitled to return to the equivalent or same job at the end of the leave. Employers are not allowed to dismiss or unequally treat these workers as well. Based on the Clause 6, workers who take parental leave are allowed to request changes to their working patterns of working hours for certain time. It is necessary for employers to consider the request of workers as well as their own needs. In general, the directive plays an important part in promoting gender equality in workplace, since it takes into account women’s responsibility in family, and it promotes the achievement of gender equality in daily life.
Direct effect means that EU law direct create right and duty for individuals under certain condition, and individual could request national court to protect right and perform duty. Direct effect can be divided into vertical direct effect and horizontal direct effect. For the directives which are unconditional, clear and not fully implemented, vertical direct effect can be achieved. In other words, individual can bring an action against the member state to guarantee the achievement of his (her) right based on EU law if the member state does not turn EU law to national law in specified period. It prevents that member state refuses to implement EU law and deprive due right of citizen, for its own interests.
Take the case of Von Colson as example, Von Colson and Kamann submitted a case to the industrial court due to gender discrimination in the access to employment. The court did hold that, the case constituted gender discrimination, but it had problem in compensation. According to the national law, employees could only request employers to compensate for the cost during job application; while Germany also promised to undertake Equal Treatment Directive. Therefore, the industrial court submitted an application of preliminary decision to European Court of Justice. The decision of European Court of Justice shows that, no matter whether or not member state turns EU directive to national law, individual can bring a suit against it to protect his (her) right based on EU directive if the national government or public authority violate his (her) right.
It manifests the vertical direct effect of EU law on member state, and it is necessary for member state to observe the directive and principle of EU law regarding gender equality. In addition, based on Directive 76/207, member states are liable to take necessary measure to repeal national laws, regulations or administrative rules which are contrary to Equal Treatment Directive. In this way, discriminative terms and clauses in collective agreement, contract of employment, and organizational internal rule can be set aside or modified.
Moreover, it was controversial to understand whether or not the vertical direct effect of EU law can be applied to the lawsuit between private parties. Someone argue that, the target of directives is the government of member states; therefore, the directives of EU only have binding force on member states, and they cannot establish duties for other social members. In other words, they claim that individuals and other social members are not influenced by the directives of EU. However, the opinion was not supported by the case of Defrenne in 1976. In this case, Defrenne brought a suit against her employer for gender discrimination. The lawyer of Defrenne invoked relative contents of Article 119 EC Treaty and Equal Treatment Directive.
The European Court of Justice supported Defrenne’s claims and held that, the behaviors of the defendant belonged to gender discrimination. The case significantly influenced the application of EU laws, and set the rule that EU laws have horizontal direct effect. Based on the decision of European Court of Justice, the principle of equal pay is one of the basis of European Community. the courts of member states have the obligation to provide national citizens with the right. No matter public or private companies, both of them are liable for ensuring gender equality.
According to the case law of the CJEU, it is the defendant who has to provide an objective justification when the plaintiff brings an action due to indirect discrimination. At the same time, the employers also have the burden of proof if female worker claims discrimination in wages and the system of pay lacks transparency. As Article 19(1) of the Recast Directive provides that, member states have the obligation to take necessary measures to guarantee that, it is the defendant who has the burden of proof to prove that they do not breach the principle of equal treatment, when it comes to the lawsuit regarding direct or indirect discrimination.
Even though these rules are not applicable for criminal proceedings, it is necessary for member states to provide certain favorable rules with plaintiffs. Generally, in view of the difficulty of victim of gender discrimination in presenting proofs, EU eases the burden of plaintiff through directives. The burden of proof can be delivered to the respondent if the plaintiff proves that directive or indirective discrimination occurred or are possible to occur.
In order to guarantee that, the discriminated is able to gain effective judicial protection, EU passed certain directives to restrain and limit the organizations, proceedings, conditions and ways of compensation of juridical organizations in member states. According to Article 6(1) Directive 2002/73/EC, member states shall make sure that, those people who claim for gender equality are able to achieve relief based on appropriate judicial or administrative proceedings, including appropriate conciliation proceedings.
Based on Article 6(3) of the directive, member states shall also ensure that, related organizations, groups or other legal entities who obtain the consent of the discriminated are able to represent or support them to bring lawsuit and take participate in various related judicial or administrate proceedings. Furthermore, these organizations, groups or other legal entities shall be up to the standard set by national law; meanwhile, they also have legitimate interests to implement the directives of EU laws. Therefore, these rules offer convenience for the discriminated to maintain their legal right and interests.
In the meantime, as Article 6(2) Directive 2002/73/EC provides that, member states shall establish real and effective compensation and indemnification system. The system shall be decided by the extent of damage that the victim suffer from discrimination. Moreover, it is not allowed to impose a cap on the compensation, unless the employer can prove that the only loss sustained by discrimination is the loss of the position.
In general, based on direct effect of EU gender equality law, burden of proof and effective judicial relief, both public and private company such as Sporting Chance has to observe related EU laws.
For Sporting Chance, it is important to note that an illness arises during pregnancy, maternity leave and after maternity leave cannot be considered when to compute the sick leave based on the employment contract. As mentioned above, Article 10 of The Pregnant Workers Directive protects pregnant workers from being fired by employers from the beginning of their pregnancy to the end of the maternity leave. It is important to note that the aim of the directive is mainly to encourage improvements in the health and safety of pregnant workers and workers who have recently given birth or are breastfeeding in workplace. It is mainly to prevent female workers who are in special period from gender discrimination.
However, the protection is limited. In the case of Hertz v Aldi, Mrs. Hertz was a part-time saleswoman and cashier who was employed by Aldi Marked. She suffered from a birth-related health problem and asked for a sick leave of 1 year. In this way, Aldi Marked terminated its contract of employment with Mrs. Hertz. Mrs. Hertz claimed that Aldi Marked violated EU laws and appealed to the Hojesteret. For the Court, it was significant to figure out whether or not female workers were protected by Article 5(1) and Article 2(1) from being dismissed due to absence resulting from illness caused by pregnancy, and whether or not the protection was unlimited. Eventually, the Court held that, it was direct discrimination if an employer dismissed a female worker based on pregnancy, since it was only on account of sex.
Nevertheless, it was not direct discrimination if an employer dismissed a female worker due to her repeated periods of sick leave, even though the sick leave was caused by an illness arising from pregnancy or confinement; since an employer was likely to take similar action against a male worker in view of his repeated periods of sick leave. Furthermore, the Court claimed that, there was no difference between an illness resulted from confinement or pregnancy with any other illness, if the illness occurred after the maternity leave. In this way, the Court concluded that, the provisions of national law were not contrary to the Council Directive 76/207/EEC, and the principle of equal treatment established by EU did not cover the dismissals resulted from absences led by illness which can be attributed to confinement or pregnancy.
However, the decision of the case of Helle Elisabeth Larsson v Føtex Supermarked A/S made by the Court showed different understanding on EU laws regardless of the similar fact, Ms. Larsson was an employee of Føtex and she was pregnant after she came to Føtex more than one years. She was third on sick leave, one was from 7 to 24 August in 1991, the rest two sick leaves were because of a health problem related pregnancy, which lasted more than half of a year. In this way, Fotex informed Ms. Larsson their labor relation was severed.
Ms. Larsson thought the action of Fotex was contrary to the Directive, and her case was different from the case of Hertz. Generally, for the Court, the major question was similar to the case of Hertz, and it was also necessary to figure out whether or not dismissal arising from absence following the end of maternity leave and the leave was caused by illness regarding pregnancy was protected by Article 5(1) and Article 2(1) of Council Directive 76/207.EEC. The Court finally held that, Court’s judgment on the case of Hertz tended to run counter to the purpose of EU laws in protecting female workers, especially for the women who were in pregnancy period or maternity. Moreover, the judgment even may damage the effectiveness of Article 2(3) of the directive.
What is more, the Court argued that, even though both male workers and female workers were subject to certain illness and asked for sick leave, only female workers suffered from illnesses resulted from confinement or pregnancy. At the same time, the reason why EU directives provided special protection for pregnant workers or workers during the period of breastfeeding is taking into account women’s disadvantage in employment. Furthermore, the Court claimed that, without protection against dismissal during the period of pregnancy or breastfeeding, female workers may seriously consider the decision of having baby, and they may even terminate their pregnancy. In this way, the Court decided that, female worker’s absence resulted from pregnancy during the protected period, which was from the beginning of pregnancy to the end of maternity leave, shall not be taken into consideration as basis of subsequent dismissal.
What is more, the case of Mary Brown v Rentokil Ltd further showed that, the protection provided by the Pregnant Workers Directive also covers the dismissal resulted from the absence caused by illness regarding pregnancy. In the case, Mary Brown suffered from an illness resulting from pregnancy, and she was fired by Rentokil Ltd after asking for a sick leave of 26 weeks. Rentokil Ltd claimed that, based on its contracts of employment, any employee would be dismissed if he (she) is absent due to sickness for more than 26 weeks continuously.
In other words, Rentokil Ltd seemed not to discriminate female workers since all the workers were applicable for the contracts. There are certain questions in this case. Firstly, the Court had to answer whether or not the action of Rentokil Ltd was contrary to the Equal Treatment Directive, even if Mary Brown signed the contract of employment which entitled the employer to fire employee in this situation. Secondly, it is essential to be clear that, whether or not female workers are entitled to ask for sick leave arising from an illness caused by pregnancy after the maternity leave. Facing with these questions, the Court firstly pointed out that, since only female workers can be affected by the dismissal resulting from pregnancy or essentially due to pregnancy, in this way, it constituted direct discrimination.
Different from the judgment in the case of Larsson, the Court thought that there were significant differences between the illness caused by pregnancy after maternity leave and the illness that male workers suffer from. There was no comparability in the length of time. Even though pregnancy is different from other illness, it is the time that diseases and complications are possible to occur as well. Consequently, sometimes pregnancy forces female workers to have a full rest during the period of pregnancy, and serious diseases even lead to the inability of women in working, which constitutes the internal risk of pregnancy. Therefore, the Pregnant Workers Directive prevent the employers from dismissing female workers during the whole period of pregnancy. Since the dismissal only influences female workers in essence, and it constitutes gender discrimination. Consequently, the protection period starts from the beginning of pregnancy and ends in the end of maternity leave. The days lost from work shall not take into account the time related to pregnancy. In this way, in the case of Brown, the absence time of Mrs. Brown shall be computed from the end of maternity leave, which did not include the period of maternity leave.
The case of North Western Health Board v Margaret McKenna further verifies that, it is essential for employers to consider female workers’ protection period when to dismiss them because of their illness related to pregnancy. In this case, McKenna was an employer in the Irish public sector by the North Western Health Board. Due to a pathological state connected to McKenna’s pregnancy, she was absent from work almost during the whole period of her pregnancy. According to the policy of the Board, McKenna was entitled to be paid in a sick leave of 365 days per period of four years. Specifically, she was allowed to be fully paid by the employer for 183 days at most, as well as enjoy half pay during the days of supplementary sick leave.
However, under the system, there was no difference between illness caused by pregnancy and other illnesses. Based on the rule of the Board, all the sick leave resulted from pregnancy or birth-related health problems during the period of maternity leave shall be viewed as related to the sick leave system of the Board. In this way, the remuneration of McKenna was reduced by half because of her inability of working after the maternity leave. Even though in this case, the female worker was not dismissed by the employer, she faced with the similar question that her interest was damaged because of her absence from work resulting from an illness caused by pregnancy. It is also necessary for the Court to figure out whether or not female workers shall sacrifice their rights or benefits due to their absence caused by an illness regarding pregnancy.
The Court claimed that, economic development and the evolution of the Community law regarding gender equality play important roles in influencing the rights of pregnant women or female workers who have given birth recently. Specifically, from the case of Hertz to the case of Larsson and Brown, it is easy to find that EU laws pay much attention to provide special protection for pregnant workers against dismissal. At the same time, in addition to the loss of employment, female workers are also entitled to enjoy same income after the maternity leave. The Court summarized three kinds of possibility for female workers who suffered from pregnancy or birth-related health problems. Firstly, it is not allowed for employer to dismiss female worker from the beginning to her pregnancy to the end of her maternity leave, by reason of her inability or an illness resulted from pregnancy. Secondly, female workers may be dismissed after their maternity leave, because of their inability of working which is due to an illness related to pregnancy.
Thirdly, it is possible for female workers to have less income during her maternity leave or after the leave, because of her illness related to pregnancy. In view of female workers’ specific situation, the Court held that, for one thing, an illness related to a pregnancy can only be considered in denying to the employer the right to fire female workers because of the reason. For another thing, the reduction of female worker’s pay caused by an illness related to her pregnancy does not constitute gender discrimination. Even though the case mainly discusses the principle of equal pay between male workers and female workers, it further verifies the dismissal of female worker because of an illness caused by pregnancy after her maternity leave. It is necessary for employers to take into account the protection period of female workers provided by EU laws.
In addition, the case of Nadine Paquay v Societe d’architectes Hoet shows that, from the beginning of the pregnancy of female worker to the end of her maternity leave, the employer is prohibited to dismiss the female worker and even make up its mind to dismiss. In this case, the appellant was an employee employed by the respondent from 24 December 1987, and she took a maternity leave from the September of 1995 to 31 December 1995. According to Article 40 of 1971 Labor Law, it is not allowed for employer to dismiss a female worker from the time that the female worker informs the employer about her pregnancy to the end of a month-long period starting from the end of post-natal leave, unless the employer dismiss the female worker based on other reasons in addition to her pregnancy. At the same time, the law also points out that, it is the employer who is responsible to provide the reason of dismissal.
Moreover, the employer has to pay the female work six months’ gross payment if he fails to comply with the law and dismiss the female worker. In this case, the appellant’s protection period ended on 31 January 1996 based on the 1971 Labor Law. On 21 February 1996, the appellant received a registered letter which informed her that she was dismissed. It was a six months’ advance notice starting from 1 March 1996. However, the respondent terminated the contract of employment with the appellant on 15 April 1996 and paid the appellant the indemnity because of the dismissal in advance. Meanwhile, it is important to note that the respondent intended to dismiss the appellant as early as in the period of the appellant’s pregnancy. It was showed that the respondent published an advertisement on May 1995, for the sake of hiring a secretary. At that time, the appellant even did not take a maternity leave.
The respondent further informed a candidate that the position can be available during the time that the appellant took a maternity leave. What is more, the respondent published another recruitment advertisement soon after the appellant took maternity leave, which further proved that it planned to hire other people to replace the appellant during her pregnancy. What is more, when it comes to the reason why the respondent decided to dismiss the appellant, it is easy to find that the core role of the pregnancy of the appellant. The appellant started to work for the respondent from 24 December 1987, and the respondent only attempted to dismiss her from 1 March 1996, which was soon after the pregnancy of the appellant. In this way, the Court shall figure out two questions.
Firstly, it is essential to be clear that whether or not the protection period provided by Article 10 of Directive/85 only aims at the notification of a dismissal decision. In other words, the employer is able to make decision of dismissal and prepare for it before or during the protection period. Secondly, it is also important to make clear that if the penalty shall be at least equivalent to relative rules of national law when the employer fails to observe the EU law. In order to answer the first question as mentioned, the Court recalled the goal and objective of Directive 92/85 especially for the rule of Article 10. It argued that, it was prohibited for the employer to dismiss female workers during their pregnancy and breastfeeding, and it not only restricted the notification of the dismissal decision of the employer, but also the process of making decision and preparation.
In this way, the employer shall not think about how to find someone else to replace the position of the female worker, publish recruitment advertisement, organizing interviews and finally informed the female worker that she is dismissed during the whole period of her pregnancy and maternity. Furthermore, the Court also stressed that, the narrow understanding of Article 10 of Directive 92/85 would eventually damage its effectiveness. As for the second question, the Court held that, according to Article 12 of Directive 92/85 and Article 6 of Directive 76/207, member states shall take essential measures to protect those discriminated female workers, especially the women who are in substantial period. Therefore, the fixed pecuniary indemnity provided by national law shall be necessary for the protection of the workers concerned and at least equivalent to those set out by national law in order to implementing the directive.
Based on these cases, it is easy to find that female workers during their pregnancy, nursing and maternity leave are particularly protected by the EU laws. Even though the female worker such as Margaret Worthing are still unable to work after their maternity leave, they cannot be dismissed at once. Since female workers’ absence of work is due to an illness resulting from pregnancy or birth-related health problems, and only female workers suffer from these problems; meanwhile, EU laws provide specific protection for female workers during their pregnancy to the end of their maternity leave. In this way, it is necessary not to take into account the female workers’ absence from work during pregnancy and maternity when computing the sick pay provided by the contract of employment. For Sporting Chance, the time of Ms. Worthing’s absence from work shall be computed from the end of her maternity leave.
Generally, revoking the offer of employment to Sarah Dickens would breach EU law. In the first place, revoking the offer of employment to Sarah Dickens constitutes direct gender discrimination. In the case of Carole Louise Webb v EMO Air Cargo, Mrs. Webb was employed by EMO Air Cargo in 1992, and she temporarily acted for a woman who was going to take a maternity leave in the post. However, Mrs. Webb was pregnant soon after she worked in EMO. In this way, EMO dismissed Mrs. Webb. Mrs. Webb soon took a legal action against EMO and claimed that she suffered from gender discrimination.
At the same time, EMO claimed that, the reason why to dismiss Mrs. Webb was because she cannot satisfy the requirement of working hours at the beginning of her work. The industry court held that, it did not constitute gender discrimination, since a male worker would also be dismissed if he acted for the position but failed to provide service in prescribed period. Nevertheless, the European Court of Justice put forward different opinions. it constituted directive gender discrimination that Mrs. Webb was dismissed because of her pregnancy. For the Court, there was no need to compare Mrs.
Webb with male workers since only women would be pregnant. Therefore, women’s disadvantageous treatment resulted from their pregnancy belongs to direct gender discrimination, and it is needless to find other people for comparison. In the case of Sarah Dickens, even though Sporting Chance can claim that the reason to revoke the offer of employment is that Mrs. Dicken cannot satisfy the requirement of working hours, it would be supported by the Court since it is due to female worker’s special situation of pregnancy, which cannot happen to male workers. In this way, it constitutes direct gender discrimination.
In the second place, the European Court of Justice does not take into account that the absence of pregnant workers from work would bring serious economic losses to the employer. In the case of Tele Danmark A/S v Brandt-Nielsen, Ms. Brandt-Nielsen was employed by Tele Danmark, and she signed a contract of employment which lasted for six months. On August 1995, Tele Danmark was informed that Ms. Brandt-Nielsen was pregnant and the confinement tended to be on November of 1995. In this way, Tele Danmark dismissed Ms. Brandt-Nielsen on 23 August 1995 and claimed that, Ms. Brandt-Nielsen did not inform that she was pregnant during the recruitment. In this way, based on Council Directive 76/207/EEC, the Court had to figure out whether or not female workers can be protected against dismissal even if they signed fixed-term contracts, they were clear about their pregnancy but refused to inform their employer, and they were unable to carry out their work because of their pregnancy.
What is more, it is also essential to make clear that whether or not the answer of the first question would be affected when hiring temporary employees was very common in the industry. With regard to the first question, the Court pointed out that, the case of Handels-og Kontorfunktionærernes Forbund, Habermann-Beltermann and Weber all showed that, employers’ behavior of dismissing female workers based on their pregnancy constitute direct gender discrimination since only female workers have the issue of pregnancy. Moreover, the Court held that, employers’ dismissal tends to negatively influence the mental and physical situation of female workers, especially for someone who are during the period of pregnancy, confinement or breastfeeding.
What is worse, certain female workers even avoid pregnancy for the fear of being dismissed. The Court noted that, a fixed term contract could not influence the protection provided by Community law for female workers against a dismissal resulted from their absence from work during the pregnancy and maternity leave. Furthermore, the Court stressed that, as employer’s behavior constituted direct gender discrimination, it was not important that the absence of Ms. Brandt-Nielsen would bring economic losses to the employer. When it comes to the second question, the Court stressed that, the considerable existence of fixed-term contracts or other temporary labor relation does not make a difference that Directive 76/207 and Directive 92/85 seek to greatly protect the legal interest of female workers especially for the pregnant women or someone who are in confinement or maternity leave.
In the third place, there is no obligation for a female worker to inform her employer that she is pregnant. In the case of Wiebke Busch v Klinikum Neustadt Gmbh & Co. Betriebs-kg, Ms. Busch was a nurse who worked for Klinikum Neustadt GmbH & Co. since 1998. In June 2000, she took parental study leave when she had her first baby. In this way, Ms. Busch was able to be absent from work for 3 years. Four months after Ms. Busch took the leave, she found she was pregnant again. For the sake of improving income, Ms. Busch asked her employer to resume her as a nurse in full time and curtail her leave.
Without asking whether or not Ms. Busch was pregnant, her employer agreed her requirement since there was a vacancy in March 2001. On 9 April 2001, Ms. Busch returned to work and she informed her employer that she was pregnant on 10 April 2001. Based on the provision of the Mutterschutgesetz, female workers were entitled to take a maternity leave six months before the estimated date of birth. In this way, Ms. Busch’s employer released her from work from 11 April 2001. At the same time, her employer also rescinded the decision that agreed her to come back and work as nurse in full time. Her employer claimed that, it was because of Ms. Busch’s willful misrepresentation which resulted to its decision. In this case, the Court had to solve two questions.
Firstly, shall a female worker inform her employer about the fact of her pregnancy? Secondly, did Ms. Busch’s employer have the right to rescind his consent to reduce Ms. Busch’s parental leave since he thought that Ms. Busch was not pregnant? When to answer the first question, the Court recalled relative rules of Directive 76/207 and held that, there is no need for female workers to inform their employer whether or not they are pregnant, and the employer shall not take into consideration a woman’s pregnancy. Furthermore, the Court stressed that, Ms. Busch’s employer constituted direct gender discrimination since his decision on reinstatement in the role of Ms. Busch was on the basis of the gender. As for the second question, the Court pointed out that, Ms. Busch’s employer had no right to rescind his consent to reduce Ms. Busch’s parental leave. Because Ms. Busch’s employer only paid attention to Ms. Busch’s pregnancy when to consider the decision of curtailment of leave. Consequently, it constituted direct discrimination. Furthermore, Ms. Busch’s intention of improving personal pay cannot justify her employer’s discrimination. Generally, the case shows that there is no need for female workers such as Sarah Dicken to inform their employers of their pregnancy. It constitutes direct discrimination if employer takes into consideration the pregnancy of employee.
In addition, even a statutory prohibition on night-work by pregnant women cannot be used as a legal basis to refuse to employ a pregnant candidate, let alone the case of Ms. Sarah. In the case of Silke-Karin Mahlburg v. Land Mecklenburg-Vorpommern, Ms. Mahlburg was a nurse who was employed by the Rostock University Heart Surgery Clinic from 26 August 1994 to 21 August 1995. As her job would quit soon, she applied for another two posts in the clinic on 1 June 1995. As it was an internal recruitment, the posts were soon filled. On 13 July 1995, Ms. Mahlburg informed her employer that she was pregnant. According to the rules of Mutterschutzgesetz, employers are not allowed to arrange pregnant women to engage in the job, which may bring risk to them.
Consequently. for the sake of observing the Mutterschutzgesetz, Ms. Mahlburg was transfered to another internal post. On 18 September 1995, the employer refused to further employ Ms. Mahlburg in view of her pregnancy. However, the employer did not treat it as direct gender discrimination and claimed that it was to comply with the Mutterschutzgesetz, as the two posts were arranged for operating theatre nurses. In this case, the core question for the Court is to figure out whether or not the behavior of the employer constitutes gender discrimination, since the employer refuse to employ a pregnant candidate.
Different from the case of Dekker as mentioned before, the reason why the employer refused to employ Ms. Mahlburg was not directly based on her pregnancy, but for the sake of complying with the national law. With regard the situation, the Court stressed that, even though it is a precondition and requirement for an employer to hire an employee that he or she is able to work on time, it is not allowed for employers to dismiss pregnant workers. What is more, the dismissal tends to damage the effectiveness of Directive 76/207 since the protection provided by the directive cannot rely on the presence of female workers during maternity. Furthermore, the Court stressed that, although the Mutterschutzgesetz prohibits the employers to let pregnant workers work at night, employers cannot dismiss the pregnant workers based on the prohibition. Generally, in order to achieve substantive equality, the employers are not permissible to refuse to employ a female candidate in order to comply with the statutory prohibition. At the same time, the financial loss an employer suffers from recruiting a pregnant worker would not be taken into account by the Court.
In the case of Maria Luisa Jimenez Melgar v Atuntamiento de los barrios (hereafter the ‘Municipality’), Mrs. Jimenez Melgar continuously signed several part-time contracts with Municipality, which lasted for three months. There were no expiry dates on these contracts, but the Municipality always informed Mrs. Jimenez Melgar to renew the contract before the expiration of contract. In fact, Mrs. Jimenez Melgar served for the Municipality about one year in succession. When it comes to the May of 1999, and the third contract expired, the Municipality still renewed the contract with Mrs. Jimenez Melgar without appointing expiry date. After that, the Municipality was informed of Mrs. Jimenez Melgar’s pregnancy and terminated the contract on 2 June 1999.
In this way, Mrs. Jimenez Melgar brought a lawsuit and claimed that, the Municipality terminated the contract because of her pregnancy, which constituted gender discriminate. In this case, one of the core questions is whether or not female workers in temporary labor relations are able to be protective by the Directive 92/85. The decision of the Court showed its affirmative answer. In other words, the protection provided by EU laws for female workers especially for pregnant women or others who are in contentment and maternity is also applicable to temporary labor relations. At the same time, the Court also pointed out that, even though it is illegal for employers to terminate effective contract of employment due to the pregnancy of female workers, it is possible that the employers choose not to renew a contract when the contract expires, unless the behavior of refusing to renew the contract equal to dismissal in essence. In this way, the Court not only protect the legal interest and right of female workers who engage in temporary work, but also pay attention to the general interests of the employers. The case further shows that, employers’ refusal to hire, reintegrate or renew a contract of employment with female workers because of their pregnancy cannot be permitted by EU laws and constitute gender discrimination.
Anti-sex discrimination in employment is a basic policy and legal principle for EU, therefore, gender equality has been a central pillar for the development of EU’s social policy. In recent 50 years, under the direction of advanced concept in anti-sex discrimination, the Europe has become the most developed regions in this area all over the world. At the same time, the EU organizations, various member states, non-governmental organizations and the positive participation of common citizens play important parts in the process. What is more, for employers, it is inevitable to suffer from financial loss to comply with the laws and protect the interests of female workers.
For Sporting Chance, when it comes to compute the beginning and ending time of Margaret Worthing’s sick pay, the period of Ms. Wilson’s maternity leave cannot be taken into consideration. Furthermore, revoking the offer of employment to Sarah Dickens tends to breach EU law, since it only takes into account Sarah Dicken’s pregnancy when making the decision and constitutes gender discrimination. There is no obligation for Sarah Dickens to inform her pregnancy and employer’s financial loss would not have considered by the Court.
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