Webb v EMO Air Cargo (UK) Ltd (No.2) [1995] UKHL 13

In brief

WEBB WON: "for these reasons I would allow the appeal and remit the case to the Industrial Tribunal to assess compensation." The orders below were set aside and the cause remitted for assessment of compensation. Webb v EMO Air Cargo establishes that dismissing a woman because of pregnancy constitutes direct sex discrimination contrary to EU Directive 76/207/EEC, even where the employer's stated reason is her operational unavailability. The House of Lords acknowledged that domestic SDA 1975 comparator analysis was structurally inadequate for pregnancy cases and referred the question to the ECJ, which confirmed that pregnancy-related dismissal is inherently sex-based and cannot be justified on financial or operational grounds.

Key provisions

• webb-principle-1 — Pregnancy as sex-specific characteristic — direct discrimination: Dismissing or refusing to employ a woman because she is pregnant constitutes direct sex discrimination. Only women can be refused employment on grounds of pregnancy.
• webb-principle-2 — Limits of the domestic comparator test in pregnancy cases: A pregnant woman's circumstances are not directly comparable to a man unavailable for medical reasons, because pregnancy is a normal condition not an abnormal pathological one.
• webb-principle-3 — Duty to construe domestic legislation conformably with EU Directives: UK courts are required to construe domestic legislation to accord with the European Court's interpretation of relevant Directives.
• webb-principle-4 — Financial consequences cannot justify discriminatory refusal: Refusal of employment on account of the financial consequences of absence due to pregnancy constitutes direct discrimination. The employer's financial loss argument cannot justify the discriminatory act.
• webb-principle-5 — Maternity leave period — enhanced protection from dismissal: A woman is protected against dismissal due to absence during the maternity leave period. After the protected period, illness attributable to pregnancy is assessed under general rules.
• webb-principle-6 — Indirect discrimination — objective justification standard: The correct test for justification of indirect discrimination requires an objective balance between the discriminatory effect and the reasonable needs of the party applying it.

When relevant

When arguing that certain treatment of trans employees is inherently discriminatory without requiring a cisgender comparator — particularly post-FWS where the s.13 comparator has become harder to apply.