The Employment Appeal Tribunal ("EAT") has recently decided that a male employee who alleged he was dismissed as a result of his partner's pregnancy was not permitted to bring a claim for associative discrimination under the Sex Discrimination Act 1975.
In the case of Kulikaoskas v Macduff Shellfish and Another, the Claimant alleged that he had been dismissed because he had advised his supervisor that his partner was pregnant, following an incident in which he was questioned why he had assisted her to lift heavy weights in the factory where they both worked. He argued his dismissal therefore constituted an act of associative sex discrimination.
He brought proceedings under section 3A of the Sex Discrimination Act 1975 which states:
"a person discriminates against a woman if… at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably…"
The issue that arose was whether this provision should be construed also to prohibit associative discrimination where one person suffers less favourable treatment because of the pregnancy of another person.
Before this case, it had already been accepted that claims could be made for associative discrimination in respect of disability under the Disability Discrimination Act 1996 ("DDA"), as decided in the case of Attridge LLP v Coleman in 2009, which held that the EU Equal Treatment Framework Directive required the DDA to be construed in a way that protected associative discrimination. However the position under other strands of discrimination legislation was not clear and the Kulikaoskas case is the first case that specifically dealt with associative discrimination under the Sex Discrimination Act.
The EAT expressed the view that the Sex Discrimination Act, on which the Claimant tried to rely, did not in itself prohibit an employer from affording less favourable treatment to a man on the grounds of a woman's pregnancy.
The EAT then considered whether European law would apply to require the Sex Discrimination Act to be construed in such a way as to prohibit associative discrimination.
The EAT emphasised that the case of Attridge LLP v Coleman had been concerned with the provisions of the EU Framework Directive which applied to age, religion or belief, disability or sexual orientation, and that the wording of this Directive supported the existence of a claim of associative discrimination for these characteristics.
However, the Framework Directive does not cover sex and pregnancy, which are instead dealt with separately in the Pregnant Workers Directive 1992 and Equal Treatment Directive 2006.
The applicable wording of the Equal Treatment Directive which the EAT was concerned with was at Regulation 2(c), which stated:
"For the purposes of this Directive, discrimination includes … any less favourable treatment of a woman [emphasis added] related to pregnancy or maternity leave…"
The EAT found the use of the word "woman" to be significant given that it would have been a simple matter to provide that discrimination covered any less favourable treatment of "persons" in relation to a woman's pregnancy if the EU had intended for others aside from the pregnant woman to be protected.
The EAT also held the wording of the Pregnant Worker and Equal Treatment directives suggests that special protection is afforded to pregnant women only for the purpose of ensuring they do not suffer any harm due to the physical burden of pregnancy and for no other wider reason such as promoting conduct that secures the autonomy of women or respect for their gender. The EAT observed that related entitlements had been extended to men insofar as required, namely by the introduction of paternity leave, and the EAT did not believe that any further protection in respect of pregnancy was required or indeed permitted by law.
The Claimant's appeal was therefore dismissed.
This case was decided with reference to the Sex Discrimination Act 1975 but, as we reported last month, the Equality Act 2010 came into force on 1 October 2010 and this new legislation has the aim of harmonising the law on discrimination, including the area of associative discrimination. It is, however, unclear whether the prohibition on associative discrimination covers pregnancy.
Section 13 of the Equality Act 2010 contains the prohibition against direct discrimination on grounds of sex. Section 13(4) specifically excludes discrimination on grounds of marriage and civil partnership, types of sex discrimination, from the protection of associative discrimination but no reference is made to pregnancy. This silence may well mean that, under the Equality Act 2010, associative discrimination on the grounds of pregnancy is also now prohibited. However, some commentators believe that as the Equality Act has a specific provision at section 18 dealing with pregnancy discrimination, and as section 18 does not permit claims for associative discrimination, claims for associative discrimination on grounds of pregnancy are also not permitted by the new Equality Act.
Therefore, although the above case has clarified the position in respect of acts covered by the Sex Discrimination Act 1975, the situation post 1 October 2010 is less clear and may well be the subject of future litigation.