Webb v EMO Air Cargo (UK) Ltd (No 2) (1994) C-32/93 is a UK labour law and EU labour law case, concerning discrimination against a pregnant woman. It held that no comparator (for instance to a sick man) is necessary to establish discrimination against a pregnant woman.
EMO Air Cargo had an employee called Mrs Stewart who had taken maternity leave. Mrs Webb was hired to replace Mrs Stewart, though it was envisaged that she would stay on working after Mrs Stewart came back. Then, however, it transpired that Mrs Webb was also pregnant and due to give birth at around the same time as Mrs Stewart. Mrs Webb was dismissed. She claimed this was sex discrimination under SDA 1975 s 1(1). The employer argued she was unable to carry out the tasks for which she was recruited.
The Court of Appeal held that a sick man, who was the appropriate comparator, would have been treated similarly. The House of Lords referred to the ECJ.
The ECJ referred to the Dekker case and reaffirmed that pregnancy discrimination was sex discrimination. There is no need for a comparison with a man who is ill. This followed from article 2(1) and article 5(1) of Directives 76/207/EEC and 92/85/EC.
The House of Lords applied the decision of the ECJ. Lord Keith had said, ‘The relevant circumstance for purposes of the comparison required by section 5(3) to be made is expected unavailability at the material time… [though the] precise reason for the unavailability is not a relevant circumstance, and in particular it is not relevant that the reason is a condition which is capable of affecting only women or, for that matter, only men’. However, now Lord Keith said when the answer had returned from the ECJ the following.
... in a case where a woman is engaged for an indefinite period, the fact that the reason why she will be temporarily unavailable for work at a time when to her knowledge her services will be particularly required is pregnancy is a circumstance relevant to her case, being a circumstance which could not be present in the case of the hypothetical man.