C-32/93

* Original language: Italian. 1 — OJ 1976 L 39, p. 40. 2 — OJ 1992 L 348, p. 1.

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OPINION OF MR TESAURO — CASE C-32/93

prohibits the dismissal of female workers The Act also prohibits indirect discrimina- 'during the period from the beginning of tion, which consists in applying to a woman their pregnancy to the end of the maternity a requirement or condition which, although leave ..., save in exceptional cases not con- applying equally to a man, is to the woman's nected with their condition which are per- detriment or is in any event more difficult mitted under national legislation and/or for her to comply with (Section 1(b)). Sec- practice and, where applicable, provided that tion 2 of the Act states that the provisions the competent authority has given its con- relating to sex discrimination against women sent'. However, that directive has not yet are to be read as applying equally to the entered into force; its transposition into treatment of men, except with regard to the national law is to be accomplished special treatment afforded to women in con- by 19 October 1994. nection with pregnancy or childbirth. Sec- tion 5(3) is of particular interest inasmuch as it provides that a comparison of the cases of persons of different sex or marital status 'must be such that the relevant circumstances in the one case are the same, or not materi- ally different, in the other'. Lastly, for the purposes of the present case, Section 6(2) of the Act states that it is unlawful for an employer to discriminate against a woman employed by him by dismissing her or sub- jecting her to any other detriment. 3. With regard to the relevant national legis- lation, the Employment Protection (Consol- idation) Act 1978 prohibits unfair dismissal (Section 54) and dismissal on the ground of pregnancy is considered unfair (Section 60). However, those provisions do not apply when, as in the case under consideration, dis- missal takes place during the initial two years of the employment relationship (Section 64).

Mrs Webb's subsequent appeals, first to the Employment Appeal Tribunal and then to the Court of Appeal, were both unsuccess- ful. She finally appealed to the House of Lords which decided that it would be appro- Two weeks after starting work, Mrs Webb priate to seek a preliminary ruling from the realized that she too was pregnant, a state of Court on the following question: affairs which led the managing director of E M O to tell her that he had no choice but to dismiss her. O n 30 July 1987 Mrs Webb accordingly received a letter which, after reminding her that the position she held had become vacant on account of the pregnancy of another employee, stated: 'Since you have only now told me that you are also pregnant 'Is it discrimination on grounds of sex con- I have no alternative other than to terminate trary to Council Directive 76/207/EEC for your employment with our company.' an employer to dismiss a female employee ("the appellant")

6. Before we turn to the substance of that question, some attention should be given to the issue, raised on several occasions in the course of the proceedings, of the applicabil- 7. That said, the first question which arises ity of the directive to the case under consid- is whether dismissal in a case such as this eration, bearing in mind that the dispute is constitutes direct discrimination on grounds between two persons governed by private of sex within the meaning of the directive. law and the Court has not so far held that For that purpose it must be ascertained directives have horizontal direct effect. whether the material reason for the dismissal applies without distinction to workers of both sexes or whether, on the contrary, it applies only to one of the sexes.

In that connection, the first point to note is that in applying national law, regardless of whether the provisions in question were adopted before or after the directive, 'the national court called upon to interpret it is required to do so, as far as possible, in the It is quite clear that termination of an light of the wording and the purpose of the employment contract on the ground of preg- directive in order to achieve the result pur- nancy applies only to women and therefore sued by the latter and thereby comply with constitutes direct discrimination on grounds the third paragraph of Article 189 of the of sex. The Court has already had occasion Treaty'. 3 to give a ruling to that effect, both in 'Dek- ker' 4 with respect to the refusal to appoint a

3 — Judgment ¡n Case C-106/89 Marleasing [1990] ECR 1-4135, at paragraph 8. 4 — Case C-177/8S Dekker [1990] ECR 1-3941.

pregnant woman, and in Hertz 5 with respect directive, inasmuch as it constitutes — at to the dismissal of a pregnant woman. In least in principle — direct discrimination on connection with the latter situation, which grounds of sex. 7 corresponds to the present case, the Court stated that 'the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex, as ... [does] ... a refusal to appoint a pregnant woman'. 6 9. However, the national court points out that in the present case, unlike the Dekker case, the unequal treatment is not directly based on the female employee's pregnancy but is the result of her inability to carry out, during a particular period, the task for which she had specifically been engaged. In other 8. The view that a refusal to appoint and/or words, Mrs Webb was not dismissed because a decision to dismiss on the ground of preg- of her pregnancy but because her condition nancy can relate only to women, thus consti- would have prevented her from working tuting direct discrimination on grounds of during the period in which she should have sex, implies — obviously — that substantive replaced Mrs Stewart. equality between men and women as regards employment precludes any consideration, either when taking up employment or during the employment relationship, of a factor which — by definition — only affects women. It follows, therefore, from the rea- soning underlying the judgments in Dekker and Hertz — and how could it be otherwise It is, indeed, difficult to separate and to dis- — that the directive must be construed so as tinguish pregnancy from inability to work to achieve substantive equality, and not mere for a specific length of time which coincides formal equality which would constitute the moreover with the duration of maternity very denial of the concept of equality. leave. In such cases, absence from work is in fact determined by the pregnancy, that is to say, by a condition which only affects women. While it may be true that the woman in question was engaged for the pur- pose of replacing for a short time another employee during the latter's maternity leave, the fact remains that she was engaged on the basis of a contract for an indefinite period Consequently, the dismissal of a female and therefore her inability to carry out the employee for the sole reason that she is preg- nant is contrary to Article 5(1) of the

task for which she was engaged affects only a 11. In my view, the circumstances of the limited period in relation to the total length present case call with even greater justifica- of the contract. tion for a similar conclusion, in view of the fact that the termination of the employment relationship is not connected with a statu- tory prohibition, as in the case just men- tioned, but was occasioned simply by the employer's concern to avoid possible finan- cial 9 or in any event organizational burdens arising from the need to engage an employee 10. The Court's recent judgment in to perform — on a temporary basis — the Habermann-Beltermann 8 is of considerable tasks which the female employee who was significance with regard to the point at issue. subsequently dismissed had been recruited to In that case, the Court was asked to rule on carry out. It follows that the dismissal of the the lawfulness of the termination of an employee in question owing to the fact that, employment relationship — whether by because of her pregnancy, she would not annulment or avoidance of the contract — in have been able to fulfil one of the (express or circumstances in which the unequal treat- implied) terms of the relevant contract — an ment was not based directly on the woman's inability which is, however, temporary in pregnancy but was the result of the prohibi- relation to the duration of the contract — tion on night-time work during pregnancy, must therefore be considered incompatible laid down by Article 2(3) of the aforemen- with the principle of equal treatment, as laid tioned directive. down in the directive.

cannot in any case be considered lawful the same situation. That line of reasoning when the appellant herself, as the order for presupposes, however, that the circumstances reference reveals clearly enough, was not of a pregnant woman are comparable to 10 aware of her condition. That is the corol­ those of a male employee who is unable, for lary, although only implicitly, of the judg­ medical or other reasons, to work during a ment in Habermann-Beltermann, in which given period. the Court had been called upon to take that factor into account for the purposes of its ruling.

In other words, in a case such as this, dis­ missal should not be classified as (direct) dis­ crimination on grounds of sex, inasmuch as the underlying cause (inability to perform the contract during a predetermined period In that connection it seems to me of no avail of time) would lead to the same conse­ to rely on the judgment in Hertz, n in which quences with respect to a male employee in the Court considered that the dismissal of a female employee on account of repeated absences through illness, even though the ill­ ness may be attributable to pregnancy or 10 — In my view, moreover, whether or not the parties are aware of the pregnancy at the time they enter into an employment relationship is, for the purposes of a valid employment rela­ tionship and — a fortioń — of a possible dismissal, actually irrelevant save in exceptional cases to be assessed individu­ ally (see point 12 of my Opinion in Habermann- 11 — See Case C-179/88, cited above, in particular paragraphs 14 Beltermann, cited above). to 17.

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O P I N I O N O F MR T E S A U R O — CASE C-32/93

15. In view of the foregoing observations, I see no need to tackle the question raised by 12 — That judgment may certainly not be construed as meaning the Commission in the course of the pro- that tne Court has recognized as permissible (or even justi- fiable) the dismissal of a woman who is absent from work ceedings, concerning hypothetical situations for a reason (illness) connected with pregnancy. Closer examination reveals that the Court's decision turned on the in which the contract at issue is not, as in the fact that Mrs Hertz's illness began after her return to work present case, for an indefinite period but is at the end of her maternity leave. The implication is that an illness connected with pregnancy is covered by the direc- for a fixed term, in the circumstances limited tive, thus rendering dismissal unlawful, to the extent that such illness occurred during maternity leave, that is to say, to the period in which a female employee during a period denned by the Member States for the pur- poses of the derogation referred to in Article 2(3) of the who has just been engaged would have to be directive. absent on maternity leave.

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WEBB v EMO AIR CARGO

Nor do I find it necessary to reflect on the ment may be suspended and/or the terms of various devices suggested by the Commis- the contract modified as a result of a female sion in order to spare the employer the employee being unable to work during a attendant financial consequences when it given period are at present matters still transpires that a female employee who has governed by national law,13 provided — just been engaged will not be able, even if of course — that such practices do not lead only temporarily, to do the work required of to a breach of the principle of equal treat- her. Whether or not the contract of employ- ment.