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Hooray for Lady Hale

In its judgment in St Prix, the Supreme Court referred to the CJEU the following questions (§22):

“1. Is the right of residence conferred upon a ‘worker’ in Article 7 of the Citizenship Directive to be interpreted as applying only to those

(i) in an existing employment relationship,

(ii) (at least in some circumstances) seeking work, or

(iii) covered by the extensions in article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain ‘workers’ for this purpose?

2.    (i) If the latter, does it extend to a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of   childbirth)?

(ii) If so, is she entitled to the benefit of the national law’s definition of when it is reasonable for her to do so?”

These questions may appear dry. The real story lies in paragraph 19 of the unanimous decision in St Prix. There Lady Hale, with whom Lords Neuberger, Mance, Kerr and Reed agreed, stated the following:

“Pregnancy is not just a lifestyle choice. Equal treatment encompasses the reasonable response of a working woman to the physical demands and limitations of late pregnancy and childbirth”.

That observation is remarkable primarily because the recognition of pregnancy and childbirth as an equality issue has come so late to the highest domestic courts. True it is that the House of Lords accepted, in Webb v EMO (Air Cargo (UK) Ltd (No.2) (1995), that pregnancy discrimination could amount to direct sex discrimination for the purposes of domestic law. But this acceptance was late and reluctant, and resulted from an unambiguous ruling by the ECJ in the same case. Whether the result of the passage of time alone or, more likely, the presence of Lady Hale on the Supreme Court, the change in approach is as marked as it is welcome.