Ms. Dekker applied for the post of instructor at the training centre for young adults (Centre). She informed the committee dealing with the applications that she was three months' pregnant. The committee none the less put her name forward to the board of management of the Centre as the most suitable candidate for the job. Ms. Dekker was later informed by board that she would not be appointed, because the law in force would not reimburse the daily benefits the Centre should pay her, therefore creating financial loss to the Centre. Ms. Dekker turned to the national courts to request damages for her financial loss.
Question referred to the CJEU by the national court
Is an employer directly or indirectly in breach of the principle of equal treatment laid down in the EU law if he refuses to enter into a contract of employment with a candidate, found by him to be suitable, because of the adverse consequences for him which are to be anticipated owing to the fact that the candidate was pregnant when she applied for the post?
The Court emphasized that application of the principle of equal treatment means that there must be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts. It further noted that the situation must be considered discriminatory if the fundamental reason for the refusal of employment applies exclusively to one sex. In the particular case the Court observed that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. Such discrimination 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. Furthermore, such refusal to employ pregnant women makes the employer fully liable of any damages created to the party suffered.