A remarkable ruling last week from the ECJ in case C-506/06 Mayr v Flöckner, which extends the concept of sex discrimination under the Equal Treatment Directive, 76/207, to cover unfavourable treatment of a woman because she is absent while undergoing IVF treatment.

Sabine Mayr worked as a waitress at Flöckner’s Konditorei in Salzburg, and was having IVF treatment. At a key stage of the process, she took a week’s sick leave to have the fertilised eggs reimplanted – but her employer (obviously a pretty harsh lot) sacked her by letter as soon as she went off sick. She claimed this was contrary to the Pregnant Workers Directive, 92/85.

The ECJ didn’t go along with this: Mayr was about to become pregnant when her employer sacked her, but because at the time her fertilised egg was still in vitro, she was not, in legal terms, pregnant. That Directive didn’t protect her.

But she was protected by the Equal Treatment Directive. Just as (before the existence of the Pregnant Workers Directive) the ECJ ruled in the past that dismissal on grounds of pregnancy was unlawful discrimination, since only women could be subject to the unfavourable treatment – see case C-177/88 Dekker – similarly, dismissal essentially because of IVF treatment was also discrimination: only a woman would be absent because of undergoing it.

An interesting extension of sex discrimination law, this. The court might have taken the kind of approach it adopted in cases like C-179/88 Hertz and C-400/95 Larsson, and said that a dismissal for sickness absence outside, i.e. in this case before, any period of pregnancy and maternity leave, even if the sickness or absence is pregnancy-related, is analogous to dismissal of a man for sickness absence and so not discrimination. In a sense that would have been logical given the approach in those cases to pregnancy-related illness. But it chose not to: here, the link to future pregnancy was held all-important. Why?

I agree with the court’s ruling actually, and I think the key differences from cases like Larsson are first, that Mayr’s week off was a foreseeable, normal part of what is now a fairly common way of getting pregnant – not an unusual supervening occurrence. And second, there must be a suspicion that the dismissal was not simply because of the five-day absence alone (surely, I think, that must be an unfair dismissal anyway under Austrian law?) but must in part have been motivated by the knowledge that Mayr was going to be taking maternity leave in the future. In a sense, it’s a bit like dismissing a woman if she’s openly trying for a baby: the employer seems to have been trying to get round the Pregnant Workers Directive and Dekker by getting his retaliation in first.

2008-03-05T16:32:00+00:00Tags: , |