Coleman revisited

The Equality and Human Rights Commission is supporting the case of Kulikauskas v Macduff Shellfish, which is currently the subject of a reference to the Court of Justice of the European Union (“CJEU”). The case raises the interesting question of whether a man can bring a sex discrimination claim on the basis that he has been treated less favourably due to his association with a pregnant woman.

Andrius Kulikauskas and his partner Alisa Mihailova had been employed in the respondent’s fish factory for nine days when a supervisor noticed that Mr Kulikauskas was doing Ms Mihailova’s heavy lifting. Mr Kulikauskas alleges that he informed the supervisor that Ms Mihailova was pregnant and the supervisor gave the impression that she would be dismissed as a result. On the same day, Ms Mihailova and Mr Kulikauskas received letters of dismissal and were told that their work was unsatisfactory. Both brought unfair dismissal and sex discrimination claims, but the employment tribunal refused to accept Mr Kulikauskas’ claim. The employment appeal tribunal (EAT) upheld the tribunal’s decision: [2011] ICR 48.

Association argument

In the EAT, it was argued that, following Coleman v Attridge Law [2008] IRLR 722 (ECJ), the relevant provisions of the Sex Discrimination Act 1975 (“SDA”) should be read to give effect to the directive known as the Recast Directive (2006/54/EC) in order to provide protection for fathers and others associated with pregnant women. The EAT rejected this argument on the basis that protection against discrimination on grounds of pregnancy in EU law is based on health and safety concerns for the “biological condition” of the pregnant woman and her foetus, and there are no wider policy reasons to extend this protection to those associated with pregnant women.

The case was appealed further to the Court of Session, which decided that a reference would be made to the CJEU on the question of whether the Recast Directive renders it unlawful to directly discriminate against a person on grounds of another person’s pregnancy.

The argument now advanced for Mr Kulikauskas starts from the basic premise that pregnancy discrimination amounts to sex discrimination, and the wording of the Recast Directive on sex discrimination is wide enough to encompass associative claims on grounds of pregnancy.

Treatment of another

Article 2(1)(a) of the Recast Directive defines “direct discrimination” as “where one person is treated less favourably on grounds of sex than another has been or would be treated in a comparable situation”. Article 2(2) provides:

“For the purposes of this Directive, discrimination includes:… (c) any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC.”

In our submissions to the CJEU, we argue that following the court’s approach in Coleman, the reference in article 2(1)(a) to treatment “on grounds of sex” is wide enough to encompass claims relating to treatment of a person on grounds of another person’s sex. The reference to “any less favourable treatment of a woman related to pregnancy or maternity leave” in article 2(2)(c) is merely illustrative of the types of conduct that direct sex discrimination can include and is not part of an exhaustive list which restricts pregnancy claims to women.

Further, given wider European objectives of promoting equality between men and women and reconciling occupational and family obligations (Community Charter of the Fundamental Social Rights of Workers, article 16), we argue that there are strong policy reasons for such an interpretation and that the protection of pregnant women is no less important than the protection of the disabled and other groups covered by Coleman.

Dignity at stake

It will be recalled that in Coleman, the Advocate General expressed the view that: “directly targeting a person who has a particular characteristic is not the only way of discriminating against him or her... One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them... A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation..., as they too, affect the persons belonging to suspect classifications.”

It is Mr Kulikauskas’ position therefore that an equally “robust conception of equality” in relation to gender requires that the Recast Directive should be interpreted as including those treated less favourably because of their association with a pregnant woman.

Although the case concerns the provisions of the SDA, which have now been replaced by the Equality Act 2010, any guidance from the CJEU will help to clarify how the Equality Act should be interpreted in future cases, at a time when many fathers are seeking to take a greater share of childcare responsibilities and may wish to take advantage of forthcoming measures on transferable parental leave.