Pregnancy Discrimination: Equality, Protection or Reconciliation?
Dismissal for pregnancy-related sickness has been justified on financial and administrative grounds for many years. Employers maintained that they should not be burdened with the financial consequences of pregnancy and maternity where this entailed long term incapacity even where subsequent dismissals infringed the principle of equal treatment. Ever since the twin decisions of Dekker1 and Hertz,2 the European Court of Justice has struggled to find an acceptable balance between the equality principle and the demands of a male oriented labour market. Hertz tipped the balance in favour of the latter by ruling that dismissal for absence after maternity leave was not discriminatory even where the illness originated in pregnancy. The Pregnant Workers Directive3 which introduced special protection for pregnant women throughout the pregnancy and maternity period, left the scope of Hertz unclear. The Court has now clarified this vexed area of law in Brown v Rentokil Ltd4 by ruling that it is direct discrimination to dismiss a woman at any time during her pregnancy for absences caused by pregnancy-related illnesses. The Court has not, however, chosen to depart from the limitations imposed in Hertz and followed in Larsson.5 Brown highlights the limitations of the equality concept in dealing with female difference in the workplace, as positive discrimination in favour of motherhood is circumscribed by artificial time limits which are left to be defined under the principle of subsidiarity. This is another pragmatic decision which recognises that, for cost reasons, domestic and work roles must conform with male work patterns outside a narrowly drawn maternity period.