ABG Employment Newsletter – October 2010

Pregnancy Discrimination

Can a man bring a claim for pregnancy discrimination? This was the interesting question which arose in the case of Kulikaoskas v MacDuff Shellfish.

In this case the Claimant and his partner were dismissed by the employer after working for them for less than a month. The Claimant brought a claim for pregnancy discrimination claiming that he was the victim of “associative pregnancy discrimination”. He alleged that he had been dismissed after telling his Supervisor that he had helped his partner lift heavy weights in the factory because she was pregnant.

However his claim has been rejected by the EAT which held that the Sex Discrimination Act (SDA) does not cover associative pregnancy discrimination. The EAT felt it was clear that neither the SDA nor the European Pregnant Workers Directive nor the Equal Treatment Directive requires protection against associative pregnancy discrimination.

It should be noted, however, that this case was brought under the provisions of the SDA which has been replaced as from 1 October 2010 by the Equality Act 2010. It is not clear whether or not the Equality Act provides protection against associative pregnancy discrimination. This is because the Equality Act outlaws discrimination “because of a protected characteristic” and pregnancy is one of the protected characteristics covered by the Act. So it seems to be a question of “watch this space” and we await a future case brought under the Equality Act to decide this interesting issue.

Redundancy Selection Pools and Bumping

Employers usually have a wide measure of discretion when deciding who to include in the selection pool of potentially redundant employees. However the EAT has said that it is wrong for an employer automatically to decide that the pool should only include the employee or employees holding the position it has decided to remove from its structure. There can be circumstances when it will be appropriate to include other or more junior employees in the pool. This is the case of Fulcrum Pharma (Europe) Ltd v Bonassera. In this case the employer’s HR Team consisted of an HR Manager supported by an HR Executive. The employer decided it did not need an HR Manager and following consultation made the Manager redundant. It did not regard the HR Executive as being in the pool of potentially redundant employees.

However the EAT has ruled that the HR Manager’s redundancy was unfair as the employer had failed to consider the possibility of including both HR employees in the selection pool. It said that, in deciding the makeup of the selection pool, factors to be considered include:

How different the jobs are;

  • The difference in remuneration between them;
  • Relative length of service of the employees involved;
  • The qualifications of the employees; and
  • Any other factors applying to the particular case.

TUPE/Aquired Rights Directive

The European Court of Justice (ECJ) has ruled that the Acquired Rights Directive applies where an operating company to whom employees are assigned transfers its business to a third party even though the employees in question are employed by another group service company.

The case concerns Heineken International. All staff in the Heineken Group are employed by a service company which assigns them to work for various operating companies.

In this case the employees were assigned to work for Heineken’s catering services company which supplied internal catering services for Heineken staff. The catering services were outsourced to a third party catering company and the question arose as to whether the employees working for Heineken’s catering company but actually employed by the group service company were covered by the Acquired Rights Directive.

The ECJ ruled that the Directive applied and so the employees were transferred to the new catering contractor. The ECJ was prepared to pierce the corporate veil and find that the group service company could be deemed to be a transferor of the business to which the employees were assigned.

On the face of it TUPE would not apply in such a situation, but there must be a strong likelihood now that in similar circumstances a UK Tribunal would interpret TUPE in the same way as the Directive.


The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

ABG Employment Newsletter – August 2010

Christopher Gigg 
[email protected] 
+44 (0)115 934 3310

David Hardstaff
[email protected]
+44 (0)115 934 3323

Kathryn Meir
[email protected]
+44 (0)115 934 3308