Lord Keith of Kinkel

My Lords,

This appeal involves a difficult and interesting question in the field of sex discrimination, namely whether an employer is guilty of such discrimination, direct or indirect, when he dismisses a female employee, shortly after engaging her, on learning that she is pregnant and therefore will not be available for work at the time when the task for which she was specifically recruited falls to be performed.

The facts of the case are stated in the decision of the Industrial Tribunal, the appellant, Ms. Webb, being there described as "the applicant" and the employers, EMO Air Cargo (UK) Ltd., ("EMO") as "the respondents", their managing director being Mr. Fullicks. The statement of facts is as follows:

The applicant was engaged by the respondents by a letter of 26 June 1987 as an Import Operations Clerk, subject to a three months probationary period. She started work on 1 July 1987. The respondents have 16 employees (male and female), four of whom are in the Import Department. At her interview, the applicant was told that the job was available because another of the Import Operations Clerks (Valerie Stewart) was pregnant. Valerie Stewart intended to work until the end of the year and to return after maternity leave. That the applicant needed about six months' training from Valerie Stewart so as to be able to replace her. Valerie Stewart's baby was due on 16 February 1988. The return of Valerie Stewart would not mean that the applicant would have to leave. About two weeks after starting work, the applicant thought she herself might be pregnant and told Valerie Stewart. The applicant had no such suspicion at the start of her employment. This matter came to the ears of Mr. Fullicks who called the applicant to his office the following day. The applicant said she thought she was pregnant, but was not sure. Mr. Fullicks told her that he had no alternative but to dismiss her, but she could choose whether to leave that day or at the end of the month. Having chosen the latter, she received a letter dated 30 July 1987 on 30 July, stating 'you will recall that at your interview some four weeks (ago) you were told that the job for which you applied and were given had become available because of one of our employees becoming pregnant. Since you have only now told me that you are also pregnant I have no alternative other than to terminate your employment with our company'. Her pregnancy was in fact confirmed during the week after the meeting with Mr. Fullicks. She did not tell Mr. Fullicks of the confirmation, but we consider that nothing turns on this. The applicant's confinement is expected on 8 March 1988. The applicant would have liked to have been able to return to work with the respondents.

The Tribunal went on to find that EMO had no formal sick pay scheme but that in practice an employee was given full pay on sick leave without a specific time limit. Male and female employees were treated alike. In one instance a female employee had two to three months sick leave in hospital on full pay, and ordinarily the position would be the same for one having a baby, resulting in three months absence, but the appellant was engaged to take the place of Valerie Stewart during the latter's absence due to pregnancy. If the appellant had said at her initial interview that she might be pregnant she would not have been offered the job.

The appellant's claim that her dismissal constituted direct discrimination against her on the ground of her sex, or alternatively indirect discrimination, contrary to the Sex Discrimination Act 1975, was dismissed by the Tribunal. It held that the real reason for the dismissal of the appellant was her anticipated inability to carry out the primary task for which she had been recruited, namely to cover the job of Valerie Stewart during the latter's absence on maternity leave, and that a man recruited for the same purpose would have been treated similarly if he had declared that he