Pregnancy; dismissal; dismissing a woman because she is unavailable due to pregnancy is sex discrimination. That was the ruling of the ECJ on the reference made by the House of Lords at [1993] ICR 175: Lord Keith's speech there had reasoned that the relevant circumstance was unavailability for work and that the reason for it was not relevant. The House applied the ECJ's ruling when the case returned ([1995] ICR 1021).
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Remedies; discrimination; loss of a chance. Guidance on compensating servicewomen dismissed because of pregnancy. Applying Lord Diplock in Mallett v McMonagle [1970] AC 166, the EAT held that what would have happened but for the discrimination (whether she would have returned after maternity leave, for how long, and with what promotion) is not a question of fact decided on the balance of probabilities: the tribunal assesses the chances and reflects them in the award (951A-953F).
“The first hypothetical question which an industrial tribunal must ask itself is: what are the chances that, had she been given maternity leave and an opportunity to return to work, the applicant would have returned? This hypothetical question will require careful thought before it is answered. The answer to it is not, with respect to some industrial tribunals, a question of fact at all. It is not a question of seeing and believing, or not believing, what the particular applicant says she would have done. She, like everyone else, is entering into the realm of conjecture and speculation.”Morison J, [1994] ICR 918 at 951A-C
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Maternity; assessment; sex discrimination; Directive 76/207/EEC, arts 2(3) and 5(1). The employer's rules required six months' presence at work for an annual performance assessment; Mrs Thibault fell short only because of her maternity leave [13]-[14]. The right to an annual assessment, and so to qualify for promotion, is part of the conditions of the contract of employment within art 5(1) [27]. The exercise of rights conferred under art 2(3) cannot be the subject of unfavourable treatment as to working conditions: the Directive pursues substantive, not formal, equality [26]. A woman still bound by her contract during maternity leave must not lose the benefit of working conditions that apply to men and women alike [29]. Depriving her of the assessment, and of the opportunity of qualifying for promotion, because of absence on maternity leave is discrimination based directly on grounds of sex [32]. The Directive precludes national rules with that effect [33].
Holiday pay; Working Time Regulations 1998; non-guaranteed overtime. A conjoined appeal heard with Bear Scotland Ltd v Fulton and AMEC Group Ltd v Law; see the Bear Scotland entry for the ratio. Article 7 of the Working Time Directive requires normal remuneration to include payments for overtime the worker is required to work although the employer is not obliged to offer it.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.