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The legal response to pregnancy

Published online by Cambridge University Press:  02 January 2018

Anne Morris  and
Susan Nott
Anne Morris
Affiliation:
University of Liverpool
Susan Nott
Affiliation:
University of Liverpool
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Extract

Advocates of the legal equality of women and men must, sooner or later, address the issues raised by the biological differences between the sexes. Even those who would argue for a completely sexually egalitarian society which does not recognise differences based on sex cannot avoid this issue. Women are child-bearers: this a a biological fact. They are also perceived as child-rearers: a view with origins that are clearly more complex than mere biology. These particular functions have an impact on all aspects of a woman's life within and outside the home. In the workplace pregnancy is treated as a deviation from the male norm or as the price to be paid by the employer for employing women. It is women who are expected to make concessions and it is unsurprising that the claim has been made that ‘the heart of woman's oppression is her child-bearing and child-rearing role’.

Type
Research Article
Information
Legal Studies , Volume 12 , Issue 1 , March 1992 , pp. 54 - 73
Copyright
Copyright © Society of Legal Scholars 1992

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References

1. Shulamith Firestone, The Dialectic of Sex, 1971.

2. Dekker v Stichting Vormingscentrum voor Jonge Volwassenen (VJV-Centrum) [1991] IRLR 27; Hertz v Aldi Marked K/S (sub nom Handels-og Kontorjunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening) [1991] IRLR 31.

3. [1991] IRLR 27.

4. Basil Blackwell, 1988.

5. Ibid, p 5.

6. See Turley v Allders Department Stores Ltd, n 73, infra.

7. Phillips, Anne (ed), Feminism and Equality, Basil Blackwell, 1987, p 8 Google Scholar.

8. See note 2 above.

9. See Gilligan, Carol, In a Different Voice, Harvard University Press, 1982 Google Scholar.

10. See Petchesky, R., ‘Workers, Reproductive Hazards and the Politics of Protection’, Feminist Studies 5, no 2 (1979) 233 CrossRefGoogle Scholar, Hill, A. C., ‘Protection of Women Workers and the Courts: A Legal Case History’, ibid, p 248 Google Scholar, Wright, M. J., ‘Reproductive Hazards and “Protective” Discrimination’, ibid, p 302 Google Scholar.

11. See Creighton, Working Women and the Law (1979), pp 19–37 for an account of the development of protective legislation.

12. 208 US 412 (1908) at p 412.

13. ‘… the hours of work legislation constitutes a barrier - often an artifical one - to equal opportunities for women. So long as this legislation remains as it is at present, women workers will be disadvantaged’. Health and Safety Legislation: should we distinguish between men and women? (EOC, 1979, p 29) cited in Gregory, Sex, Race and the Law, Legislating for Equality (1987). Not everyone agreed with the repeal of these laws, arguing instead that they should be extended to cover men: Angela Coyle, ‘The Protection Racket’ (1979) Feminist Review 1.

14. For example, the Employment Act 1989. s 9 amends the law to allow women to work underground in mines.

15. Wilson & Clyde Cod Ltd v English [1938] AC 57. An employer must take account of the fact that a woman is or may become pregnant. If he does not do so and as a result of his failure to take reasonable care for her health her ability to reproduce is impaired or her pregnancy is unsuccessful, he will be liable to her in damages for negligence. If; however, he advises the female employee that her work is hazardous to her or to an existing or potential foetus and she voluntarily accepts the risk, the question arises as to whether the employer may, in any subsequent action for negligence, rely on the defence of volenti non fit injuria. Theoretically this may be possible, in practice, in the employment context, it is rare. Merrington v Ironbridge Metal Works Ltd [1952] 2 All ER 1101 at 1103 per Hallet J.

16. Eg Factories Act 1961.

17. Eg Ionising Radiations Regulations 1985, SI 1985/1333.

18. 1980, SI 1980/1248.

19. Section 1(4) states that if, preceding conception, either or both parents are aware of the risk of a child being born disabled, an employer would not be liable. The defence of volenti non fit injuria would apply in these circumstances. Cf n 9.

20. OJ C 281/3, arts 3 and 4. Note that the Draft Directive is concerned with the working environment as opposed to general ‘social’ rights, because it is based on art 118a which, though it allows for adoption by a qualified majority in the Council, rather than unanimity, is restricted to improvements in the working environment.

21. [1981] ICR 299.

22. See Ministry of Defence v Jeremiah [1979] 3 All ER 833.

23. The purpose of this amendment was to comply with the European Court's interpretation of art 2 of the Equal Treatment Directive given in Johnston v The Chief Constable of the Royal Ulster Constabulary [1986] IRLR 263.

24. OJ C 281/3, arts 3 and 4.

25. Ibid, arts 3(2), 3(4) and 4(3)

26. 76/207.

27. Marshall v Southampton and South-West Hampshire Area Health Authority [1986] IRIR 140.

28. Foster v British Gas plc [1991] IRLR 268.

29. von Colson and Kamann v Land Nordrhein-Westfalen [1986] 2 CMIR 430.

30. Duke v Reliance Systems [1988] IRLR 118.

31. Case C 106/89, commented on in [1991] IRLR 1.

32. [1986] IRLR 263.

33. [1991] IRLR 27.

34. Ibid, p 29.

35. English courts, when dealing with a woman dismissed for some reason connected with her pregnancy, compare her treatment with that of a man who is in an analogous situation. See Webb V Emo Cargo (UK) Ltd [1990] IRLR 124. At the time of writing a Court of Appeal decision in Webb was still awaited. See now (1991) Times, 30 December, where the Court of Appeal confirmed this approach. Cf practice in Northern Ireland. See Sefton, , ‘Pregnancy and Discrimination in Ulster’, 1991 New Law Journal, vol 141, p461 Google Scholar.

36. James v Eastleigh Borough Council [1990] IRLR 288. In this case the House of Lords affirmed that motive is irrelevant in relation to direct discrimination.

37. [1991] IRLR 31.

38. Employment Protection (Consolidation) Act 1978, s 60.

39. Ibid, ss 33, 45.

40. Ibid, s 3 1A.

41. Social Security Act 1986, s 46.

44. A comparative study of the arrangements made for maternity leave and other childcare provision within the European Community can be found in Childcare in the European Communities 1985-1990, Women of Europe Supplement, 1990.

43. Employment Protection (Consolidation) Act 1978, s 54.

44. Ibid, Sch 13, paras 3 and 4.

45. Ibid, para 6.

46. The Draft Directive on Pregnancy and Maternity specifies periods of maternity leave for which there is no qualifying period (art 5). To receive payment during the period of maternity leave, however, a woman must have worked or be registered as unemployed since ‘at least the beginning of the pregnancy’ (art 5(4)).

47. [1989] IRLR 493.

48. On the question of pay and art 119, see Barber v Guardian Royal Exchange Assurance Group [1990] IRLR 240.

49. See 1991 Equal Opportunities Review, No 36, p 19.

50. On behalf of part-time employees, the Equal Opportunities Commission sought judicial review against the government, challenging the legality of the hours requirements as they apply to the right to statutory redundancy pay and compensation for unfair dismissal, arguing that the requirements contravene the Equal Treatment Directive. The applications were rejected on the ground that the discriminatory impact on part-timers could be objectively justified: R v Secretary of State for Employment, ex p Equal Opportunities Commission (1991) Times, 11 October.

51. Employment Protection (Consolidation) Act 1978, s 60(1)(a)(b).

52. Ibid, s 60(2). Otherwise the employee is treated as unfairly dismissed.

53. [1977] IRLR 383.

54. [1987] IRLR 438.

55. Ibid, p 440.

56. Employment Protection (Consolidation) Act 1978, s 57(3).

57. Further support for this argument is to be found in the Draft Directive on Pregnancy and Maternity which prohibits the dismissal of pregnant women for reasons connected with their pregnancy from the start of pregnancy to the end of maternity leave. Article 6(2).

58. For an argument to this effect see Michael Rubinstein [1991] IRLR 235.

59. Draft Directive on Pregnancy and Maternity, art 6.

60. [1988] IRLR 263.

61. Ibid, p 266.

62. Employment Protection (Consolidation) Act 1978, s 33(3)(d).

63. Ibid, s 47.

64. Lavery v Plessey Telecommunications Ltd [1983] ICR 534. Cf W F Woolworth plc v Smith [1990] ICR 45, where the woman was given a new job during her leave and was not seeking to return to her original job. Her claim, which was successful, was thus under the ordinary provisions relating to unfair dismissal generally.

65. W F Woolworth plc v Smith [1990] ICR 45.

66. Employment Protection (Consolidation) Act 1978, s 45.

67. Ibid, s 56A(2). See also the exception made in relation to ‘small employers’, that is those with five or fewer employees, where it is not ‘reasonably practicable’ to allow an employee to return (s 56A(2)).

68. Employment Protection (Consolidation) Act 1978, s 45(3), Sch 2, para 2(2).

69. [1986] IRLR 203.

70. Ibid, p 205.

71. Gregory v Tudsbury [1982] IRLR 267.

72. For details of the availability of Statutory Maternity Pay, see Ogus, and Barendt, , The Law of Social Security, 3rd edn (1988) pp 229–232 Google Scholar.

73. [1980] ICR 66.

74. [1985] IRLR 367.

75. But see Berrisford v Woodard Schools (Midland Division) Ltd [1991] IRLR 247, where a pregnant woman was dismissed because her pregnancy was a visible sign of extra-marital sex. This was held not to amount to sex discrimination.

76. [1990] IRLR 124. An appeal against the EAT'S decision was rejected by the Court of Appeal (1991) Times, 30 December.

77. Sex Discrimination Act 1975, ss 1(1)(a), 5(3).

78. Berrisford v Woodard Schools (Midland Division) Ltd [1991] IRLR 247. The hope was not realised, above, note 76.

79. In apparent conflict with the House of Lords in James v Eastleigh Borough Council [1990] IRLR 288 in which it was made clear that motive is irrelevant in relation to direct discrimination.

80. ‘Childcare in the European Communities 1985-1990’, Women of Europe Supplement, 1990.