The Community directive on equal treatment for men and women as regards access to employment precludes a refusal to appoint a pregnant woman to a post for an indefinite period on the basis of national legislation which seeks to ensure the protection of pregnant women
From 26 August 1994 to 31 August 1995 Ms Mahlburg was employed as an operating-theatre nurse by the Rostock University Heart Surgery Clinic of the Land Mecklenburg-Vorpommern under a fixed-term contract. When she applied, on 1 June 1995, for one of two posts available for an indefinite period in the Clinic, she was pregnant. On 13 July 1995 Ms Mahlburg gave written notice of the pregnancy to her employer. In order to comply with German legislation protecting pregnant women her employer immediately transferred her to another internal post.
On 18 September 1995, it was decided not to appoint Ms Mahlburg, in accordance with the German legislation (Mutterschutzgesetz) which expressly prohibits employers from employing pregnant women in areas in which they would be exposed to the harmful effects of dangerous substances. The post concerned was in the operating-theatre.
Ms Mahlburg appealed against the rejection of her application to the Arbeitsgericht (Labour Court) Rostock. She claimed that the refusal to give her an employment contract for an indefinite period and the grounds for that refusal constituted unlawful discrimination on grounds of sex within the meaning of the Community directive on equal treatment for men and women as regards access to employment, which had been transposed by Paragraph 611a of the German Civil Code (BGB).
By decision of 15 April 1997 the Arbeitsgericht Rostock dismissed Ms Mahlburg's case. On appeal, the Landesarbeitsgericht (Regional Labour Court) took the same view, relying on the case-law of the Bundesarbeitsgericht (Federal Labour Court) to the effect that Paragraph 611a of the BGB does not preclude an employer from deciding not to appoint a pregnant applicant to a post on the ground that the fact that pregnant women may not do certain work would prevent the applicant being employed, from the outset, in the post to be filled. The Landesarbeitsgericht nevertheless added that Paragraph 611a of the BGB, which transposes the Directive into German law, had to be interpreted in conformity with Community law. For that reason it decided to stay proceedings and to refer a question to the Court of Justice for a preliminary ruling on that point.
The Court of Justice has replied that the Directive precludes a refusal to appoint a pregnant woman to a post for an indefinite period on the ground that a statutory prohibition on employment attaching to the condition of pregnancy prevents her from being employed in that post from the outset.
The Court cited its case-law: only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. It pointed out, however, that in this case the unequal treatment was not based directly on the woman's pregnancy but on a statutory prohibition on employment attaching to that condition. The question to be considered, therefore, was whether the Directive allowed an employer not to conclude an employment contract for an indefinite period on account of the fact that compliance with the prohibition on pregnant women's employment would prevent the woman carrying out, from the outset, the work in the post to be filled.
According to the Court, it follows from its case-law, in particular the cases concerning the dismissal of pregnant women, that the application of provisions concerning the protection of pregnant women cannot result in unfavourable treatment regarding their access to employment, so that it is not permissible for an employer to refuse to take on a pregnant woman on the ground that a prohibition on employment arising on account of the pregnancy would prevent her being employed from the outset and for the duration of the pregnancy in the post of unlimited duration to be filled.
As for the possible financial consequences of an obligation to take on pregnant women, in particular for small and medium-sized undertakings, the Court cited its case-law to the effect that a refusal to employ a woman on account of her pregnancy cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her maternity leave.
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