(38)  Pregnancy is a female problem: official

The European Court of Justice has ruled in an Article 177 reference from the House of Lords in a Scottish appeal that the Equal Treatment Directive (Council Directive 76/207/EEC, OJ 1976 L39/40) prevents dismissal of a female worker at any time during her pregnancy for absences owing to pregnancy-related illness, even if the dismissal is the result of a term in the worker’s contract of employment applicable to male and female workers alike (Brown v Rentokil Ltd, The Times, 2 July 1998). The Court reasoned that otherwise Community law protection would only be available to pregnant women able to comply with the conditions of their employment contracts, which would render the Directive ineffective. The situation of a pregnant worker unfit for work through pregnancy could not be treated in the same way as that of a male worker ill and absent through incapacity for the same length of time. For earlier comment on this issue, see C. Boch, When is pregnancy unique to the female sex?, (1997) 1 Edinburgh Law Review 392-399.