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ECJ reference - Sex discrimination by association

Is it unlawful sex discrimination to discriminate against a man on the grounds of his partner’s pregnancy?  That in essence is the question which has just been referred to the Court of Justice of the European Union by the Inner House of the Court of Session, in the case Kulikauskas v Macduff Shellfish (Scotland) Ltd. and Duncan Watt.

The issue arose when Mr Kulikauskas was dismissed from his job following discovery of his partner’s pregnancy.  She worked alongside him for the same employer, and both lost their jobs after her employer was informed of her pregnancy.  Both claimed that the pregnancy was behind their dismissals, and on that basis claimed both unfair dismissal and sex discrimination.  The employment tribunal, however, rejected Mr Kulikauskas’ claim so far as he was alleging sex discrimination, and that rejection was upheld on appeal by the EAT.  ([2011] ICR 48).

Now the Court of Session has referred two questions to the CJEU: (1) Under the Recast Directive (2006/54/EC) is it unlawful to treat a person (“A”) less favourably on the grounds of a woman’s (“B’s” ) pregnancy, and (2) With reference to the Recast Directive, is it unlawful discrimination to treat a person (“A”) less favourably on the ground of the pregnancy of a woman (“B”) who is (i) his partner, or (ii) otherwise associated with him.  If the Court answers the first positively, then the second question does not arise, but the formulation leaves open the possibility of a finding that this kind of unlawfulness may not generally arise, but  only when the man and woman are in some form of relationship or association.

The background to the case, and the reference, is the seminal ruling in Coleman v Attridge Law [2008] IRLR 722 ECJ, where for the first time the concept of ‘associative discrimination’ was recognised and applied within European discrimination law.  But that was a case arising under a different Directive, and involving disability - a different ‘protected characteristic’ (to use the language of the Equality Act 2010).  The claimant’s argument, however, is that the principle which underpins Coleman is not restricted to the particular facts where disability is the ground of less favourable treatment, and there is no reason to see discrimination on grounds of pregnancy as in any way less reprehensible than discrimination on grounds of disability.  If the Court of Justice agrees, it will be important for interpretation of the Equality Act.  Although the case itself arose under the pre EA law and section 3A of the Sex Discrimination Act 1975, it potentially impacts on the law as it now stands.  On the face of it s.18(2) of the Equality Act  does not allow for associative discrimination on the ground of pregnancy.  Depending on the answer given by the Court, it may be necessary to take a different view of the present law – which is one reason by the case continues to have the support of the Equality and Human Rights Commission.