In 1998 a landmark ruling made by the European Court of Justice held that dismissal for any illness associated with pregnancy was a form of direct discrimination under both the EEC Council’s Equal Treatment Directive 1976 and the Sex Discrimination Act 1975.

Mrs Brown, who was a driver, had been unable to work because of illness related to pregnancy was dismissed by her employer in 1990 for sickness absence of more than 26 weeks. Her employers argued that this was in keeping with a standard contract of employment that applied to both men and women. Her case was dismissed by an industrial tribunal, but she pursued it further, although appeals to the Employment Appeals Tribunal and the Court of Session were unsuccessful. Upon appeal to the House of Lords, the case was referred to the European Court of Justice.

When B became pregnant, she was unable to work owing to pregnancy related illness and was dismissed after the six month period. B’s claim of sex discrimination was dismissed by an industrial tribunal and she appealed unsuccessfully to the EAT and the Court of Session. When she appealed further, the House of Lords made a reference to the ECJ for a preliminary ruling on the interpretation of Council Directive 76/207.

In 1998  the ECJ ruled in the case of Brown v Rentokil as follows:

The Court held that where a female is dismissed from employment on the basis of absence due to incapacity for work resulting from her pregnancy, such dismissal constitutes direct discrimination on grounds of sex as it can affect only women. Articles 2(1) and 5(1) of the Directive prohibit the dismissal of a female employee at any time during her pregnancy on the basis of absence due to incapacity for work caused by pregnancy-relating illness. Furthermore, a national law which allows an employer to dismiss a pregnant worker on the basis of absences caused by pregnancy-related incapacity constitutes direct discrimination on the grounds of sex as it equates a pregnant worker unfit for work as a result of pregnancy-related disorders with a male worker unfit for work as a result of general illness. (Brown v Rentokil Limited, C-394/96 [1998] IRLR 445)