Carole Louise Webb v EMO Air Cargo (UK) Ltd.
Date: 1994-07-14
19 As the Court ruled in paragraph 13 of its judgment in Case C-179/88 Handels- og Kontorfunktionaerernes Forbund i Danmark [1990] ECR I-3979 (hereinafter "the Hertz judgment") and confirmed in paragraph 15 of its judgment in Case C-421/92 Habermann-Beltermann [1994] ECR I-0000, the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex.
20 Furthermore, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with "pregnancy and maternity", Article 2(3) of Directive 76/207 recognizes the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman' s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth (Habermann-Beltermann, cited above, paragraph 21, and Case 184/83 Hoffmann v Barmer Ersatzkasse [1984] ECR 3047, paragraph 25).
21 In view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, the Community legislature subsequently provided, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (OJ 1992 348, p. 1), for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave.
22 Furthermore, Article 10 of Directive 92/85 provides that there is to be no exception to, or derogation from, the prohibition on the dismissal of pregnant women during that period, save in exceptional cases not connected with their condition.
25 As Mrs Webb rightly argues, pregnancy is not in any way comparable with a pathological condition, and even less so with unavailability for work on non-medical grounds, both of which are situations that may justify the dismissal of a woman without discriminating on grounds of sex. Moreover, in the Hertz judgment, cited above, the Court drew a clear distinction between pregnancy and illness, even where the illness is attributable to pregnancy but manifests itself after the maternity leave. As the Court pointed out (in paragraph 16), there is no reason to distinguish such an illness from any other illness.
26 Furthermore, contrary to the submission of the United Kingdom, dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the directive.
27 In circumstances such as those of Mrs Webb, termination of a contract for an indefinite period on grounds of the woman' s pregnancy cannot be justified by the fact that she is prevented, on a purely temporary basis, from performing the work for which she has been engaged (see the judgment in Habermann-Beltermann, cited above, paragraph 25, and paragraphs 10 and 11 of the Advocate General' s Opinion in this case).