In a decision that has ramifications for the dismissal of women in the UK, in Mäyr v Backerei under Konditorei Gerhard Flöckner, the European Court of Justice ("ECJ") has held that the dismissal of a woman who is at an advanced stage of in vitro fertilisation treatment, where the ova have been fertilised but not yet transferred to the uterus, will be discrimination on the grounds of sex if the dismissal is related to this in vitro treatment.

However, the ECJ also found that a worker undergoing IVF treatment was not a "pregnant worker" if, at the time at which she was told she was being dismissed, her ova had been fertilised but not implanted into her womb.

Ms Mäyr was employed as a waitress and was given notice of dismissal whilst on a period of sickness absence. The reason for her sickness was that she was undergoing a course of IVF treatment, which involves the fertilisation of the ovum outside of the body. On the date she was notified that she was being dismissed, the ova taken from her had been fertilised but had not yet been implanted to her uterus. Austrian law has provisions to protect against the dismissal of pregnant workers, as does UK law.

Her employers rejected her claim on the basis that no pregnancy existed on the date on which she was given notice. They argued that it was only at the moment of the transfer of the ova to her body that protection against the termination of her employment began.

The Austrian appellate courts referred the case to the ECJ for a ruling on whether Ms Mäyr was a "pregnant worker" within the meaning of the Pregnant Workers Directive, which protects against the dismissal of workers who are pregnant, who have recently given birth or are breastfeeding.

The ECJ held that to benefit from the protection against dismissal, the pregnancy in question "must have begun". The ECJ shied from making a determination on what is a very sensitive social issue. The ECJ took into account the reasoning behind the Directive was to protect workers at what is a very vulnerable time in their lives, and for that reason, protection commenced from the earliest possible date in the pregnancy. However, the ECJ held that it could not be accepted, for reasons of legal certainty, that workers obtained protection when the in vitro fertilised ova had not yet been transferred to the uterus. Key to the ECJ's reasoning was the fact that in vitro fertilised ova could be kept for an indeterminate period in some EU states. The ECJ was concerned that applying the protection against dismissal before the transfer of the fertilised ova could have the effect of the worker obtaining the benefit of protection from dismissal for many years. The ECJ gave the example of where the fertilisation had been carried out for precaution, transfer of the ova was never certain to take place.

However, the ECJ held that the dismissal of a female worker for the reason that she is undergoing the advanced stage of in vitro fertilisation where the ova are fertilised and thereafter transferred to her body, constitutes direct discrimination on the grounds of sex contrary to the Equal Treatment Directive, which lays down the principle of equal treatment between men and women in employment. The ECJ considered that dismissal for such a reason could only affect women.

Implications for the UK

Issues governing the interpretation of UK laws on sex discrimination must be considered in the context of EU legislation on the same subject, having regard to any interpretations given by the ECJ.

Arguably, therefore, the implication of the ECJ decision may be that, should the issue ever be tested before the UK courts, workers may not be protected from dismissal until the fertilised ova have been implanted into the uterus. However, it would be unwise to make any assumptions until the issue is tested before the UK courts.

In the UK, it is automatically unfair to dismiss a woman if the reason (or principal reason) for the dismissal is connected to her pregnancy or maternity leave (section 99, Employment Rights Act 1996). If a worker is not "pregnant" then she will not have the protection of this legislation.

The finding may also have relevance to section 3A of the Sex Discrimination Act ("SDA"), which prohibits discrimination over the whole period from when a woman becomes pregnant to the end of statutory maternity leave, and section 3A(3), which states that any treatment of a woman on grounds of pregnancy-related illness is considered treatment on the grounds of pregnancy itself. Again, if the worker is not "pregnant" she will be unable to rely on these provisions.

However, a woman may still have a claim under normal sex discrimination principles, if the reason for her dismissal is related to her IVF treatment. If, for example, a woman is dismissed for sickness absence, but the reason for her sickness absence is that she was undergoing IVF treatment, the dismissal may potentially be direct discrimination, or alternatively indirect discrimination for a reason that relates to her sex.