Associative Pregnancy Discrimination

In Kulikaoskas v MacDuff Shellfish, the EAT has held that it is not possible for a man to bring a claim of "associative" pregnancy discrimination.

Before the Equality Act 2010 came into force on 1 October 2010, the law in Great Britain on associative discrimination was inconsistent across the different discrimination strands. Whilst under the Race Relations Act 1976 it was unlawful to treat an employee less favourably because of the race of a third party, associative discrimination was, generally speaking, not unlawful.

However, the domestic discrimination legislation had to be read in the light of European law. In Coleman v Attridge Law, Mrs Coleman was forced to quit her job after she requested time off to look after her four-year-old disabled son. Following decisions of the ECJ and the EAT, it was held that direct disability discrimination could arise where a person is treated less favourably because of the disability of a third party (e.g, Mrs Coleman’s son).

In Kulikaoskas, the Claimant and his partner were both dismissed from their employment after less than three weeks in the job. Mr Kulikaoskas alleged that he had been dismissed because of his partner’s pregnancy. He bought a claim under s3A of the Sex Discrimination Act 1975, which provided that a person discriminates against a woman if, during pregnancy and maternity leave, he treats her less favourably on the ground of her pregnancy.

The tribunal refused to accept Mr Kulikaoskas’s discrimination claim. He appealed on the grounds that s3A of the SDA 1975 had to be interpreted in the same way as the Disability Discrimination Act 1995 had been in the Coleman case – in other words, he should be protected against associative pregnancy discrimination.

The EAT dismissed his appeal. Its primary reason for doing so was that European law did not require section 3A of the SDA 1975 to be read as covering associative pregnancy discrimination. It distinguished the Coleman case because it had been decided under the Framework Directive. On the other hand, Mr Kulikaoskas’s claim fell under the remit of the Pregnant Workers’ Directive and the Equal Treatment Directive, which recognised that special protection is required in respect of the biological condition of pregnancy. If the intention of these Directives was to define discrimination as less favourable treatment of a person “in relation to a woman’s pregnancy” they could have done so.

Because it considered the law to be clear, the EAT declined to make a reference to the ECJ. Although it was not required to consider the position under the Equality Act 2010, it did comment that, given the same facts, it was not entirely clear if Mr Kulikaoskas’ claim would have succeeded under the new regime. Time, and case law, will tell…

Equality Act 2010 comes into force today

The majority of the Equality Act 2010's provisions come into force today, 1 October 2010. The provisions coming into force include:

• The basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions, premises, work, education, associations and transport.


• The new concept of "discrimination arising from disability", to restore the protection from "disability-related discrimination" lost as a result of the House of Lords' decision in London Borough of Lewisham v Malcolm.


• Preventing employers from asking pre-employment health questions, except in specified circumstances (s60).


• Making pay secrecy clauses unenforceable (s77).


• New powers for employment tribunals to make recommendations in relation to the workforce as a whole (s124).


• The general provisions allowing voluntary positive action (s158).

There are still a number of provisions that have not yet come into effect and which the government is currently "considering how to implement", perhaps the most notable of which are:

• Provisions relating to combined discrimination (s14); and
• Provisions relating to positive action in recruitment and promotion (s159).

If you haven't already reviewed your equal opportunities policy documentation - and ensured any standard compromise agreement refers to the new legislation - there's no time like the present!

National Minimum Wage goes up today

The national minimum wage goes up today, 1 October 2010. The new hourly rates are:

• Standard (adult) rate: £5.93 (up from £5.80).
• Development rate (workers aged between 18 and 20): £4.92 (up from £4.83).
• Young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices): £3.64 (up from £3.57).

The adult rate will be extended to 21-year-olds; it currently applies to workers aged 22 and over.

It is also worth noting a new minimum wage of £2.50 per hour for apprentices. This will apply to apprentices under 19 or those aged 19 and over but in the first year of their apprenticeship.

Full details are available here.