Scottish Court of Session asks European Court to rule on whether a man can be discriminated against on the grounds of his partner’s pregnancy

22nd February 2012

The Scottish Court of Session has referred the case of Kulikauskas v Macduff Shellfish (Scotland) Ltd. and Duncan Watt to the Court of Justice of the European Union (the CJEU).

The court will be asked to answer the question about whether it is possible legally to discriminate against a man on the grounds of his partner’s pregnancy.

Mr Kulikaoskas was employed by MacDuff and alleged that his dismissal was linked to his employer's discovery that his partner (who worked alongside him in the same firm) was pregnant.

The employment tribunal, however, rejected Mr Kulikauskas’ claim of sex discrimination which was upheld on appeal by the EAT.  ([2011] ICR 48). While making no decision on the facts, the EAT held that there was no scope for an associative discrimination claim on the ground of pregnancy, thus distinguishing the effect of the ECJ decision in Coleman v Attridge.  The EAT concluded that the remit of Coleman was limited to the prohibited grounds covered by the Framework Directive which does not include pregnancy.

The Court of Session has referred two questions to the CJEU: (1) Under the Recast Directive (2006/54/EC) is it unlawful to treat a person (“A”) less favourably on the grounds of a woman’s (“B’s” ) pregnancy, and (2) With reference to the Recast Directive, is it unlawful discrimination to treat a person (“A”) less favourably on the ground of the pregnancy of a woman (“B”) who is (i) his partner, or (ii) otherwise associated with him.

The case has striking similarities with the case of Coleman v Attridge Law where the then ECJ ruled that Sharon Coleman was protected by laws to protect disabled people. She was not herself disabled but her son was and she argued she was discriminated against because of his disability. The ECJ agreed and the concept of associative discrimination was born.

In this case the claimant is arguing that the less favourable treatment is by association not with a disabled person but on the grounds of pregnancy

If the Court of Justice agrees, it will be important for the interpretation of the Equality Act which does not appear, at least on the face of it, to cover associative discrimination on grounds of pregnancy.

Brian Napier QC of Cloisters acts for the Appellant, Mr Kulikaoskas, who is supported by the EHRC.