EMPLOYMENT UNIT EASTER EGGS

Employment Unit

Mayr –v-  Backerei und Konditorei Gerhard Flockner OHG 2008

The first “Easter egg” involves a recent decision of the European Court of Justice.  The Court were asked to consider the issue of whether a female employee undergoing IVF treatment is protected from dismissal by the European Pregnant Workers Directive.  Ms Mayr was a waitress who was undergoing IVF treatment when she was dismissed.  The European Court of Justice held that the Pregnant Workers Directive did not apply to a worker in Ms Mayr’s situation where the fertilised eggs had not yet been implanted.  However, it concluded that she could rely on the Equal Treatment Directive, which prevents discrimination on grounds relating to sex. 

It is well established that dismissal of a female worker for being pregnant, or for a reason relating to pregnancy, is automatically unfair and it amounts to direct sex discrimination.  The European Court of Justice said that logic could be applied to the dismissal of a female worker who was at an advanced stage of IVF, if the dismissal was essentially based on the fact that the woman had undergone such treatment.  Taking the reasoning of the European Court of Justice further, it is reasonable to conclude that if a woman were to be treated less favourably for reasons relating to IVF treatment, then it is reasonably likely, that such treatment could fall foul of the European, and domestic legislation.

Egg Stores (Stanford Hill) Limited –v- Leibovici

The second “Easter egg” involves the doctrine of frustration.  Frustration occurs when, through neither party’s fault, some reasonably unforeseeable event occurs which makes the contract of employment impossible or unlawful to perform, or radically different from what the parties had originally intended.  So for example, if the sole business premises of the employer burns down, and there is no other work for the employee to do, then the contract is frustrated.  If a contract is frustrated, it comes to an end immediately without a dismissal on the part of the employer or a resignation on the part of the employee.  The employee is not entitled to raise a claim for unfair dismissal and is not entitled to any notice or payment in lieu of notice.

In the case of Egg Stores, it was held that an employee prolonged or sudden serious illness or disability is capable of frustrating the contract of employment.  The Egg Stores case set out a number of factors to take into account which they referred to as “relevant considerations”: 

• The length of previous employment
• The expected future duration of employment
• The nature of the job
• The nature, length and effect of the illness or disabling event
• The employer’s need for the work to be done and need for a replacement to do it
• The risk to the employer requiring employment protection obligations towards a replacement employee
• Whether the employee has continued to be paid
• The acts and statements of the employer in relation to the employment, including the dismissal of, or failure to dismiss the employee
• Whether a reasonable employer could be expected to wait any longer for the employee to return

The relevant considerations as outlined in Egg, remain the relevant considerations as at today’s date.  Further case law has added two further factors which should be taken into account: the contractual terms as to sick pay and the prospects of recovery.

A word of caution: this case was decided before the Disability Discrimination Act 1995 came in to force.  The issue of frustration will need to be carefully considered alongside the Disability Discrimination Act.  It may well be, that the contract is frustrated, and thereby the employee would not be entitled to raise a claim for unfair dismissal, nor for any contractual payments as there had been no breach of contract, however, could still succeed in bringing a successful claim against the employer in terms of the Disability Discrimination Act 1995.