The European Court of Justice (ECJ) recently decided the case of Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG C-506/06, which was the first case of its kind and concerned a female employee that was undergoing in vitro fertilization treatment (IVF).

The ECJ has held that the Pregnant Workers Directive (92/85) does not offer protection from dismissal to a woman whose eggs have been fertilised but not yet implanted.  However, any dismissal related to the fact that a woman is undergoing, or has undergone, IVF treatment will amount to sex discrimination, contrary to the EC Equal Treatment Directive (76/207) since this only 'directly affects women'.

It was decided that the objective of the prohibition on the dismissal of pregnant workers in the Pregnant Workers Directive is to avoid the possible harmful effects on the physical and mental state of pregnant workers and therefore the protection should start from the earliest possible date in a pregnancy.  Even if that protection begins from the transfer of the ova into the uterus, the Directive could not apply to a worker in the Claimant's situation.

Spring clean of Employment legislation 

On 6 April 2008, the first of the two yearly commencement dates for employment law saw the following come into force: -

Corporate Manslaughter and Corporate Homicide Act 2007:  the new Act makes corporations, and some other designated bodies, liable for the new offence of corporate manslaughter if the management of the organisation’s activities breaches a duty of care, resulting in death.

Sex Discrimination Act 1975 (Amendment) Regulations SI 2008/656:  these Regulations will change a number of provisions, including the grounds on which a harassment claim can be brought, and what actions constitute discrimination occurring on maternity leave.

Social Security Benefits Up-rating Order 2008 SI 2008/632: these Regulations will increase statutory maternity, paternity and adoption pay from £112.75 to £117.18 per week and statutory sick pay from £72.55 to £75.40.

Information and Consultation of Employees Regulations 2004 SI 2004/3426: the scope of the Regulations, which give employees the right to agree with their employer procedures for informing and consulting on workplace issues, is extended to undertakings with 50 or more employees

Warning, expired warnings!

The decision in Airbus UK Limited v. MG Webb [2008] EWCA Civ 49  has been overturned by the Court of Appeal.

The Employment Appeal Tribunal held that Mr. Webb's dismissal was unfair because his employers had, in the Tribunal's mind, relied on an expired warning to justify the dismissal.

The facts of the case centered around Mr. Webb and a group of other employees being found watching TV in a locker room outside the normal break time.  Mr. Webb had a final written warning on his file for a similar offence which had recently expired.  Mr. Webb was dismissed the others were not.  He argued, given the disparity of treatment, that Airbus had wrongly taken his expired warning into account in making their decision.

The Court of Appeal disagreed finding that neither the expired warning nor Mr. Webb's previous misconduct for which the final written warning was given constituted the reason for dismissal.  The principal reason for Mr. Webb's dismissal was the most recent incident of watching TV.  The fact that the three other employees, who were also caught watching television, and were not dismissed did not mean that Airbus had relied on Mr. Webb's final written warning in deciding to dismiss him; for the others, this was a first offence and, therefore, they received the lesser penalty of a final warning.  For Mr. Webb, it was repeated misconduct, hence his dismissal for that particular offence.

In practice, despite this decision, employers should not take this case as carte blanche that they can take expired warnings into account as a matter of course.  Some tips on expired warnings: -

• The Court of Appeal made it clear that reliance on an expired warning should not be standard practice;
• employers should think carefully when drafting warnings;
• when drafting warnings, particularly final warnings, consider whether there are circumstances in which you might want to extend the term of the warning e.g. in the event that any later act of misconduct is the same or substantially the same as that for which the earlier final warning was given;
• disciplinary procedures should also be drafted in sufficiently flexible terms to allow this.