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the normal retirement age of 60. The health authority was following the provision of its retirement policy and accepted that she would not have been dismissed had she been a man. Men were not forced to retire until they were 65. Marshall claimed discrimination under European law as at the time the Sex Discrimination Act 1975 did not cover retirement provisions. This situation has now been remedied by the Sex Discrimination Act 1986. The European Court of Justice held that the health authority had breached the Equal Treatment Directive and discriminated against Marshall. See also: Barber v Guardian Royal Exchange Assurance Group (1990). Note also: ● Article 13 Amsterdam Treaty ● Framework Equal Treatment Directive 2000/78 ● Race Discrimination Directive 2000/43 ● Equal Treatment (Amending) Directive 2002/73. DISCRIMINATION ON THE GROUND OF PREGNANCY It is unlawful to discriminate against a woman because she is pregnant or for any reason connected to her pregnancy. Discrimination on the ground of pregnancy will constitute direct sex discrimination. The following cases highlight situations in which discrimination on the ground of pregnancy has been alleged. Webb v EMO Air Cargo (UK) Ltd (No. 2) (1995) Ms Webb was employed on a temporary basis to cover the work of another employee who was on maternity leave. Webb then became pregnant and, as she would then need to take maternity leave and be unable to cover for the absent employee, she was dismissed. She alleged sex discrimination. The case was eventually referred to the ECJ and such discrimination was held to be in breach of the Equal Treatment Directive and capable of amounting to direct sex discrimination. See also: Dekker v VJV Centrum (1991), Hertz v Aldi Marked (1991) and Rees v Apollo Watch Repairs (1996). The Employment Equality (Sex Discrimination) Regulations 2005 amended the Sex Discrimination Act 1975 with regard to pregnancy discrimination. The Regulations inserted two new sections into the 1975 Act. Section 3A (s 18, EA 2010) relates to ‘discrimination on the grounds of pregnancy or maternity leave’, and s 6A (s 17, EA 2010) relates to ‘terms and conditions during maternity leave’.
Relevant codes of practice Both sections have recently been amended by the Sex Discrimination Act 1975 (Amendment) Regulations 2008. Section 3A now states that: ‘a person discriminates against a woman if – (a) at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably, or (b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably.’ The ‘protected period’ begins when the woman becomes pregnant and ends at the time at which her maternity leave ends. The Regulations have put into statute form what had already been held in the courts in cases such as Webb, namely that it is unlawful to discriminate against a woman because she is pregnant or for a reason connected to her pregnancy. The 2005 Regulations specifically extend protection to women who miscarry before becoming entitled to maternity leave. There is now no requirement for a comparator in pregnancy discrimination cases. This requirement was removed by the 2008 amendment regulations which came into force on 6 April 2008. RELEVANT CODES OF PRACTICE The Equal Opportunities Commission and the Commission for Racial Equality both published codes