In the case of Kulikaoskas v MacDuff Shellfish and another, a man who argued that he was dismissed because of his association with his pregnant partner could not pursue a pregnancy discrimination claim under the SDA. Mr Kulikaoskas claimed that he was dismissed after telling his supervisor that he had helped his partner lift heavy weights in the factory because she was pregnant. Mr Kulikaoskas argued that the SDA had to be interpreted in the same way as the disability discrimination provisions had been in the Coleman case, to ensure protection against associative discrimination.
The EAT held that, on the face of it, the SDA does not prohibit an employer from treating a man less favourably on the grounds of a woman's pregnancy. Further, it found that European law did not require the SDA to be read as covering associative pregnancy discrimination. As it considered the law in this area to be clear, no reference was made to the ECJ.
How relevant is this case post 1 October 2010? The EAT was not required to consider the position under the Equality Act 2010. However it did comment that it "was not entirely clear" what the position would have been under the Equality Act in this case. On the one hand, the prohibition on associative discrimination clearly extends to all protected characteristics (other than marriage or civil partnership) (section 13). However, section 18, which deals separately with pregnancy and maternity discrimination because of a woman's pregnancy in the protected period, does not include protection from associative discrimination. It is arguable, therefore, that claims for pregnancy and maternity discrimination are confined to the circumstances set out in section 18 only, rather than section 13. How this conflict is to be resolved by the tribunals remains to be seen, and in the meantime employers should be aware of the risk of such claims.