exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave or a right to equivalent maternity leave.”
137. These provisions recognise that biological men cannot become pregnant and that no comparison can therefore be made between the case of a sick man and a pregnant woman, both of whom need a period of absence from work. The differential provision made for pregnancy and maternity follows from the jurisprudence of the European Court of Justice in the 1990s establishing that since “only women can be refused employment on grounds of pregnancy” a refusal to employ a pregnant woman “therefore constitutes direct discrimination on grounds of sex” without more: see Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus (Case C-177/88) [1990] ECR 1-3941 at para 12 and Handels-og Kontorfunktionærernes Forbund i Danmark v Dansk Arbejdsgiverforening (Case C-179/88) [1990] ECR 1-3979 which held that the dismissal of a woman because she was pregnant constituted direct discrimination on grounds of her sex without any need to compare her circumstances with those of a man.
138. Consistently with sections 17 and 18 of the EA 2010, special provision is made in relation to direct discrimination in section 13(6) of the EA 2010, where the direct discrimination is because of the protected characteristic of sex, as follows:
“(6) If the protected characteristic is sex –
(a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;
(b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy, childbirth or maternity.”
139. In other words, a woman can complain of direct discrimination based on less favourable treatment of her because she is breast-feeding; and a man cannot complain about the “special treatment” afforded only to women in connection with pregnancy, childbirth or maternity.
140. Thirdly, the language of direct discrimination in section 13(1) is different from the language used in the corresponding provision made by section 1(1)(a) of the SDA 1975 which defined direct sex discrimination as treatment by another person of a woman in relevant circumstances if “(a) on the ground of her sex he treats her less favourably than he treats or would treat a man”. Section 13(1) by contrast is framed by reference to less favourable treatment “because of a protected characteristic”. Under section 13(1) of the
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