Court Declares Regulation Requiring Women Employees to Defer Pregnancies as Discriminatory
The High Court, Accra, Human Rights Division presided over by His Lordship Anthony K. Yeboah J.A, in The Commissioner, CHRAJ & 2 Ors Vrs Ghana National Fire Service & Attorney-General, declared that Regulation 33(6) of the Conditions of Services of the Ghana National Fire Service (GNFS)which required employees of the GNFS who were women to defer pregnancies until three years after their employment to avoid dismissal, is discriminatory and in effect, unjustifiable, illegitimate and illegal.
The court thus ordered that the 2ndand 3rdApplicants who had been dismissed from the GNFS for becoming pregnant within the first three years of their employment pursuant to regulation 33(6) of the Conditions of Service, be reinstated to the employment of GNFS without prejudice to any benefits that accrued to them during the period of dismissal. The court further made an order for payment of all arrears of their salaries and benefits that accrued to them during the period of dismissal as well as compensation in the sum of GHS 50, 000 each to the 2ndand 3rdApplicant for the trauma and inevitable inconvenience of the wrongful dismissal.
The Court made reference to, inter alia, international human rights jurisprudence including ICCPR and CEDAW to assist the court to arrive at its conclusion. The Court, however, noted the court reached out to international human right jurisprudence only because the principles contained therein may usefully guide the court’s decision and not because such jurisprudence contains rules that bind the court’s decisions. According to the court, such jurisprudence will assist the court to adopt parameters and tests that may help the court to determine the existence of discrimination and the structure of what may amount to reasonable justification for discrimination.
The court was of the view that the ICCPRand CEDAW have provisions which proscribe discrimination. Additionally, under article 17 of the Constitution, 1992, both “equality before the law” and“protection from discrimination”are assured as fundamental human rights or freedoms with the impugned grounds for discrimination set out in the Article as “race, place of origin, political opinions, colour, gender, occupation, religion or creed”. In sum, both under international law and our constitutional law, the right to non-discrimination or freedom from discrimination generally and, particularly, on the ground of gender is acknowledged and protected. Interference with this right must, therefore, be justified, objective and legitimate.
The Court found that (1) the 2ndand 3rdApplicants are women who are protected under article 17 of the Constitution, 1992. They are not to be discriminated against on the ground of their gender or sex. The right to family includes their right to be pregnant and they are entitled to the right to choose when to become pregnant. The court was further of the view that the women have been subjected to adverse treatment as unlike their male counterparts, the 2ndand 3rdApplicants are to suffer dismissal from employment if they become pregnant three years into their employment. Regulation 33(6) adversely affects their marriage and sex life during the first three years of employment and the reason for the adverse treatment can only be on account of their gender.
The court thus rejected the argument of the GNFS that the condition of female employees’ bodies may not be conducive for vigorous physical training necessary in the first three years of employment if they become pregnant. According to the court, the differential or adverse treatment given to the women by the GNFS is neither reasonably justified nor legitimate as dismissal cannot be plausibly said to be for the protection of the woman employee.
Regulation 33(6) of the Conditions of Services of the Ghana National Fire Service (GNFS)“A female employee shall not be dismissed on the ground that she is pregnant provided she has served the first three years.”