Landmark Case: Dekker v VJV-Centrum (8 November 1990)
Protected Characteristic involved: Pregnancy and Maternity
The Legal Principle: No need for a non-pregnant comparator
UK or EU Judgement: European Court of Justice
Why is this case important?
Unlike all other protected characteristics where someone needs to show that they have received ‘less favourable treatment’ women who are pregnant or on maternity leave need only to show that they have received “unfavourable treatment”. There is no need for comparison with others.
In June 1981 Ms Dekker, when pregnant, applied for employment as an instructor in a youth training centre with VJV-Centrum (VJV). Whilst Ms Dekker was seen as the best candidate she was not offered the job because Ms Dekker had told the selection panel that she was pregnant.
VJV justified their decision on cost grounds saying they would have to not only pay Ms. Dekker’s maternity pay but also for cover for her whilst she was on maternity leave. VJV argued they would be unable to afford to do this, which would leave them short staffed for the duration of Ms. Dekker’s maternity leave.
Ms Dekker claimed discrimination on the grounds of pregnancy.
The European Court of Justice ruled that:
- refusal to employ a woman because she is pregnant, or because of the costs associated with employing a pregnant woman, is direct sex discrimination
- unlike other types of sex discrimination, it is not necessary for a pregnant woman to identify a someone in similar circumstances who is not pregnant to demonstrate that she had been discriminated against.
What do I need to know?
Line managers need to be extremely mindful of decisions they make involving women who are pregnant or on maternity leave. If a woman receives unfavourable treatment due to matters relating to her pregnancy or maternity, it is always discriminatory on the grounds of sex.
Pregnancy and Maternity is different from the other protected characteristics because there is no need for a woman to show how the treatment was unfavourable compared to other people in order to demonstrate direct discrimination.
Seek advice if you feel there are ‘objective justifications’ for any direct discrimination. NB: cost implications will not be considered a good reason.
For more discrimination law, you can read Landmark Case: Levy v McHale Legal Ltd (May 2019), related to age discrimination, here.