Opinion of Advocate General

Mr President,

Members of the Court,

1. The question referred to the Court by the House of Lords for a preliminary ruling concerns the interpretation of certain provisions of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promodon, and working conditions.

2. A summary of the relevant Community and national legislation is necessary in order to understand the terms of the question.

3. With regard to the relevant national legislation, the Employment Protection (Consolidation) Act 1978 prohibits unfair dismissal (Section 54) and dismissal on the ground of pregnancy is considered unfair (Section 60). However, those provisions do not apply when, as in the case under consideration, dismissal takes place during the initial two years of the employment relationship (Section 64).

4. I now turn to the facts of the case. By letter of 26 June 1987, EMO Air Cargo (UK) Ltd (hereinafter EMO) engaged Mrs Webb as an import operations clerk, subject to a probationary period of three months. At her interview Mrs Webb was told that the job was available because another import operations clerk, Mrs Stewart, was pregnant. In order to be capable of replacing Mrs Stewart, who intended to go on working until the end of the year and to return to her job after maternity leave, Mrs Webb needed to undergo training for a period of six months: she therefore started work on 1 July 1987. Let me make it quite clear at this point that, as the Industriai Tribunal's reconstruction of the facts plainly reveals, Mrs Stewart's return would by no means have entailed the dismissal of Mrs Webb, a fact which confirms that the latter's contract was for an indeterminate period.

5. The Industrial Tribunal, before which Mrs Webb brought proceedings contesting her dismissal, dismissed her claim that she had been the victim of direct discrimination on grounds of sex, holding instead that the real reason for her dismissal had been the fact that it would have been impossible for her to carry out the primary task for which she had been recruited, namely to replace Mrs Stewart during the latter's absence on maternity leave. The national court reached that conclusion on the ground that a male employee, engaged for the purpose of replacing a female employee during the latter's pregnancy, would also have been dismissed if he had requested leave of absence during the period in question.

6. Before we turn to the substance of that question, some attention should be given to the issue, raised on several occasions in the course of the proceedings, of the applicability of the directive to the case under consideration, bearing in mind that the dispute is between two persons governed by private law and the Court has not so far held that directives have horizontal direct effect.

7. That said, the first question which arises is whether dismissal in a case such as this constitutes direct discrimination on grounds of sex within the meaning of the directive. For that purpose it must be ascertained whether the material reason for the dismissal applies without distinction to workers of both sexes or whether, on the contrary, it applies only to one of the sexes.

8. The view that a refusal to appoint and/or a decision to dismiss on the ground of pregnancy can relate only to women, thus constituting direct discrimination on grounds of sex, implies — obviously — that substantive equality between men and women as regards employment precludes any consideration, either when taking up employment or during the employment relationship, of a factor which — by definition — only affects women. It follows, therefore, from the reasoning underlying the judgments in Dekker and Hertz — and how could it be otherwise — that the directive must be construed so as to achieve substantive equality, and not mere formal equality which would constitute the very denial of the concept of equality.

9. However, the national court points out that in the present case, unlike the Dekker case, the unequal treatment is not directly based on the female employee's pregnancy but is the result of her inability to carry out, during a particular period, the task for which she had specifically been engaged. In other words, Mrs Webb was not dismissed because of her pregnancy but because her condition would have prevented her from working during the period in which she should have replaced Mrs Stewart.

10. The Court's recent judgment in Habermann-Beltermann is of considerable significance with regard to the point at issue. In that case, the Court was asked to rule on the lawfulness of the termination of an employment relationship — whether by annulment or avoidance of the contract — in circumstances in which the unequal treatment was not based directly on the woman's pregnancy but was the result of the prohibition on nighttime work during pregnancy, laid down by Article 2(3) of the aforementioned directive.

11. In my view, the circumstances of the present case call with even greater justification for a similar conclusion, in view of the fact that the termination of the employment relationship is not connected with a statutory prohibition, as in the case just mentioned, but was occasioned simply by the employer's concern to avoid possible financial or in any event organizational burdens arising from the need to engage an employee to perform — on a temporary basis — the tasks which the female employee who was subsequently dismissed had been recruited to carry out. It follows that the dismissal of the employee in question owing to the fact that, because of her pregnancy, she would not have been able to fulfil one of the (express or implied) terms of the relevant contract — an inability which is, however, temporary in relation to the duration of the contract — must therefore be considered incompatible with the principle of equal treatment, as laid down in the directive.

12. It has been argued, however, that in the present case the question of unequal treatment does not even arise, inasmuch as the employer would also have dismissed a male employee who had asked for leave of absence, whether for medical or other reasons, over the same period in which he was meant to replace the female employee absent on maternity leave. Such proof purports to confirm that the dismissal arose exclusively from the need for the holder of the post in question to be at work during the period in question.

13. That possibility is expressly contemplated in the question submitted by the national court. What is more, it is clear from the order for reference that the problem has been raised in precisely those terms by the various national courts who have had occasion to deal with the case, precisely in order to verify in accordance with Section 5(3) of the Sex Discrimination Act whether there exists treatment which is in effect accorded only to men that can serve as a basis for comparison with that accorded to a woman in the appellant's situation, and, more particularly, whether it is permissible to compare a woman's inability to work on account of maternity and a man's inability to work, whether or not on medical grounds.

14. The judgment in Hertz serves to demonstrate, if anything, that absence through illness may not be equated with absence on maternity leave. To the extent to which that judgment holds that it is not discriminatory to dismiss an employee on account of absences through an illness which, while it may be attributable to pregnancy or confinement, began after the end of the maternity leave, it follows a fortiori that pregnancy may not be equated with illness. An inference which can be drawn, however obvious it may sound, is that a sick woman is to be treated in the same way as a sick man, whatever the cause of her illness. A pregnant woman, on the other hand, may not simply on account of her pregnancy be placed at a disadvantage to such an extent as to be excluded from the employment sector.

15. In view of the foregoing observations, I see no need to tackle the question raised by the Commission in the course of the proceedings, concerning hypothetical situations in which the contract at issue is not, as in the present case, for an indefinite period but is for a fixed term, in the circumstances limited to the period in which a female employee who has just been engaged would have to be absent on maternity leave.

16. In the light of the foregoing considerations, therefore, I propose that the Court give the following answer to the questions submitted by the House of Lords:

1 Original language: Italian.

2 OJ 1976 L 39, p. 40.

3 OJ 1992 L 348, p. 1.

4 Judgment ¡n Case C-106/89 Marleasing [1990] ECR 1-4135, at paragraph 8.

5 Case C-177/8S Dekker [1990] ECR 1-3941.

6 Case C-179/88 Handels- og Kontorfunktionærernes Forbund i Danmark, Hertz [1990] ECR 1-3979.

7 See the judgment in Hertz, cited above, at paragraph 13.

8 From this perspective, Article 10 of Directive 92/85/EEC, cited above, which prohibits the dismissal of female workers during the period from the beginning of their pregnancy to the end of maternity leave, save in exceptional cases not connected with their condition, merely confirms the interpretation of Article 5(1) set out here.

9 Case C-421/92 Habermann-Beltermann [1994] ECR 1-1657.

10 In the present case, moreover, it seems that the employer would not have to shoulder special financial burdens since the relevant national legislation makes entitlement to allowances during maternity leave subject to a series of conditions which Mrs Webb did not satisfy. In any event, however, it scarcely needs reiterating that, as expressly stated by the Court in Dekker, discrimination cannot be justified by the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her pregnancy (paragraph 12).

11 In my view, moreover, whether or not the parties are aware of the pregnancy at the time they enter into an employment relationship is, for the purposes of a valid employment relationship and — a fortioń — of a possible dismissal, actually irrelevant save in exceptional cases to be assessed individually (see point 12 of my Opinion in Habermann-Beltermann, cited above).

12 See Case C-179/88, cited above, in particular paragraphs 14 to 17.

13 That judgment may certainly not be construed as meaning that tne Court has recognized as permissible (or even justifiable) the dismissal of a woman who is absent from work for a reason (illness) connected with pregnancy. Closer examination reveals that the Court's decision turned on the fact that Mrs Hertz's illness began after her return to work at the end of her maternity leave. The implication is that an illness connected with pregnancy is covered by the directive, thus rendering dismissal unlawful, to the extent that such illness occurred during maternity leave, that is to say, during a period denned by the Member States for the purposes of the derogation referred to in Article 2(3) of the directive.

14 Although Directive 92/85/EEC, which is due to enter into force on 19 October 1994, imposes on Member States a series of unconditional obligations with regard to the treatment of female employees during maternity leave, it still leaves them the option of making pay and the grant of certain allowances subject to the requirement of previous employment for a given period not in excess of 12 months, immediately prior to the anticipated date of the employee's confinement (Article 11).