Veitch Penny LLP - Exeter | Crediton, Devon

Case

Kulikaoskas –v- Macduff Shellfish and anor
Employment Appeal Tribunal – 18 November 2010

Issues

(1) Associative Discrimination
(2) Pregnancy
(3) Sex Discrimination Act 1975

Facts

At the time the incident at issue took place, section 3A of the Sex Discrimination Act 1975 protected women against discrimination on grounds of her pregnancy.

In this case the claimant, Mr Kulikaoskas began employment (with his partner) at a shellfish factory on 27 June 2009. A supervisor noticed that Mr Kulikaoskas was helping his partner with heavy lifting. Mr Kulikaoskas told the supervisor she was pregnant and the supervisor gave the impression that she would be sacked as a result. They were both dismissed that day, purportedly on grounds of poor performance. Mr Kulikaoskas maintained that he was discriminated against because he had helped his pregnant partner.

Both employees brought claims. Mr Kulikaoskas brought claims of unfair dismissal and sex discrimination, seeking to rely on the case of Coleman v Attridge Law. Ms Coleman had been able to successfully claim she had been discriminated against due to her association with her disabled child.

The Tribunal refused to accept Mr Kulikaoskas’s claim. The Equality and Human Rights Commission (“EHRC”) supported Mr Kulikaoskas’s case and he appealed the refusal to the Employment Appeal Tribunal (“EAT”).

He argued that European law required protection for those associated with pregnant women and that section 3A of the Sex Discrimination Act should be interpreted in the same way as in Coleman in respect of disability discrimination.

Decision

Mr Kulikaoskas was unsuccessful at the EAT and his appeal dismissed. The EAT reviewed the relevant legislation and its wording. The Sex Discrimination Act 1975 prohibited discrimination against a woman on grounds of her pregnancy. It also noted that the relevant European legislation was, in this case, the Pregnant Workers Directive and the Equal Treatment Directive rather than the Framework Directive relied upon in Coleman. It was noted that the Framework Directive was drafted in a broader manner. The legislation in this case prohibited less favourable treatment of a woman “related to pregnancy” and the wording was simply not broad enough to provide protection to anyone other than a pregnant woman.

Comments

The EHRC supporting the case have questioned whether the EAT’s interpretation is too narrow. It questions whether the EAT was correct in its finding that protection from pregnancy discrimination should be limited on grounds that the protection has been put in place out of a concern of the woman’s physical and mental health, rather than the prevention of discrimination.

Practically though, this case was decided prior to the coming into force of the Equality Act 2010, which now replaces the Sex Discrimination Act 1975 relied upon in this case. Whilst the Equality Act 2010 has been drafted more widely to allow for cases such as Coleman, it has been doubted by commentators whether Mr Kulikaoskas would be protected under the new regime. Given the introduction of additional paternity leave in April 2011, this does raise the question as to whether any protection is available to the partners of mothers who wish to take this transferable leave.