Maternity Issues
Cases
Dita Danosa v LKB Lizings SIA
Case C-232/09
“The sui generis nature of the employment relationship under national law is of no consequence whatsoever as regards the status of worker for the purposes of EU law. Provided that for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration, the nature of that person’s legal relationship with the other party to the employment relationship has no bearing on the application of Directive 92/85. Furthermore, the fact that the person was a member of the board of directors of a capital company is not enough in itself to rule out the possibility that the person concerned was in a relationship of subordination to that company. It is necessary to consider the circumstances in which the board member was recruited; the nature of the duties entrusted to that person; the context in which those duties were performed; the scope of the person’s powers and the extent to which he or she was supervised within the company and the circumstances in which the person could be removed.
(see paras 39-40, 47, 56, operative part 1)
2. Article 10 of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding is to be interpreted as precluding national legislation that permits a member of a capital company’s board of directors to be removed from that post without restriction, when the person concerned is a ‘pregnant worker’ within the meaning of that directive and the decision to remove her was taken essentially on account of her pregnancy. Even if the board member concerned is not a ‘pregnant worker’ within the meaning of Directive 92/85, the fact remains that the removal, on account of pregnancy or essentially on account of pregnancy, of a member of a board of directors performing duties as an integral part of the company and providing services to it in return for remuneration can affect women only and therefore constitutes direct discrimination on grounds of sex, contrary to Articles 2(1) and (7) and 3(1)(c) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, as amended by Directive 2002/73.
The objective pursued by the rules of EU law governing equality between men and women is, with regard to the rights of pregnant women and women who have given birth, to protect those women before and after they give birth. That objective, which informs both Directive 92/85 and Directive 76/207, could not be achieved if the protection against dismissal granted to pregnant women under EU law were to depend on the formal categorisation of their employment relationship under national law or on the choice made at the time of their appointment between one type of contract and another. Whichever directive applies, it is important to ensure, for the person concerned, the protection granted under EU law to pregnant women in cases in which the legal relationship linking her to another person has been severed on account of her pregnancy.
(see paras 68-70, 74, operative part 2)
……
59 Before Directive 92/85 came into force, the Court had already held that, by virtue of the principle of non-discrimination and, in particular, under the provisions of Directive 76/207, protection against dismissal must be granted to women not only during maternity leave, but also throughout pregnancy. According to the Court, a dismissal occurring during those periods affects only women and therefore constitutes direct discrimination on grounds of sex (see, to that effect, Case C-179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I-3979, paragraph 13; Case C-394/96 Brown [1998] ECR I-4185, paragraphs 24 to 27; and Case C-460/06 Paquay [2007] ECR I-8511, paragraph 29).
60 It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave (see Paquay, paragraph 30 and the case-law cited).
61 During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing (Case C-32/93 Webb [1994] ECR I-3567, paragraph 22; Brown, paragraph 18; Case C-109/00 Tele Danmark [2001] ECR I-6993, paragraph 27; and Paquay, paragraph 31).
62 In the event that the national court were to decide that, in the case before it, Ms Danosa falls within the concept of ‘pregnant worker’ for the purposes of Directive 92/85 and that the dismissal decision at issue in the main proceedings was taken for reasons essentially connected with her pregnancy, it should be pointed out that such a decision, whilst taken in accordance with provisions of national law permitting the unrestricted dismissal of a Board Member, is incompatible with the prohibition on dismissal laid down in Article 10 of that directive.
63 On the other hand, a dismissal decision taken during the period from the beginning of pregnancy to the end of the maternity leave for reasons unconnected with Ms Danosa’s pregnancy would not be contrary to Article 10 of Directive 92/85, provided, however, that the employer gives substantiated grounds for dismissal in writing and that the dismissal of the person concerned is permitted under the relevant national legislation and/or practice, in accordance with Article 10(1) and (2) of that directive.
64 In the event that the referring court decides that, in the case before it, given the nature of the activity pursued by Ms Danosa and the context within which that activity is pursued, protection against the dismissal of a member of a capital company’s Board of Directors cannot be inferred from Directive 92/85, since the person concerned is not a ‘pregnant worker’ for the purposes of that directive, it would be necessary to consider whether Ms Danosa could possibly rely on the protection against discrimination on grounds of sex granted under Directive 76/207, a legislative act which the referring court did not mention in its questions but to which the referring court and certain interested parties which submitted observations to the Court alluded.
65 In that respect, it should be noted that, under Article 3(1)(c) of Directive 76/207, ‘[a]pplication of the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds of sex in the public or private sectors, including public bodies, in relation to … employment and working conditions, including dismissals …’.
66 As is clear from paragraph 59 above, by virtue of the principle of non-discrimination and, in particular, under the provisions of Directive 76/207, protection against dismissal must be afforded to women not only during maternity leave, but also throughout the period of pregnancy. According to the Court, the dismissal of a worker on account of pregnancy, or essentially on account of pregnancy, can affect only women and therefore constitutes direct discrimination on grounds of sex (see Paquay, paragraph 29 and the case-law cited).
67 Clearly, where an agency agreement is unilaterally terminated by the principal, before the agreed expiry date, on account of the agent’s pregnancy, or essentially on account of her pregnancy, only women can be affected. Even supposing that Ms Danosa was not a ‘pregnant worker’ in the broad sense used by Directive 92/85, to accept that a company can remove from her post a member of its Board of Directors performing tasks such as those described in the main proceedings would be contrary to the protective aim of Article 2(7) of Directive 76/207, to the extent that the removal was essentially on account of her pregnancy.
68 As the Court has already pointed out, the objective pursued by the rules of EU law governing equality between men and women is, with regard to the rights of pregnant women and women who have given birth, to protect those women before and after they give birth (see Case C-191/03 McKenna [2005] ECR I-7631, paragraph 42).
69 That objective, which informs both Directive 92/85 and Directive 76/207, could not be achieved if the protection against dismissal granted to pregnant women under EU law were to depend on the formal categorisation of their employment relationship under national law or on the choice made at the time of their appointment between one type of contract and another.
70 As is stated in paragraph 33 above, it is for the national court to determine the relevant facts of the dispute before it and to ascertain whether, as is assumed in the questions referred, the dismissal decision was brought about essentially on account of Ms Danosa’s pregnancy. If so, it is of no consequence whether Ms Danosa falls within the scope of Directive 92/85 or of Directive 76/207, or – to the extent that the referring court categorises her as ‘a self-employed person’ – within the scope of Directive 86/613, which applies to self-employed persons and which, as is stated in Article 1 of that directive, supplements Directive 76/207 as regards the application of the principle of equal treatment for those workers, prohibiting, like Directive 76/207, any discrimination whatsoever, whether direct or indirect, on grounds of sex. Whichever directive applies, it is important to ensure, for the person concerned, the protection granted under EU law to pregnant women in cases where the legal relationship linking her to another person has been severed on account of her pregnancy.
71 That conclusion is supported, moreover, by the principle of equality between men and women enshrined in Article 23 of the Charter of Fundamental Rights of the European Union, in accordance with which that equality must be ensured in all areas, including employment, work and pay.
Dekker v Stichting Vormingscentrum voor Jong Volwassenen (Case C-177/88)
Summary
1 . An employer is in direct contravention of the principle of equal treatment embodied in Articles 2(1 ) and 3(1 ) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions if he refuses to enter into a contract of employment with a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences for him of employing a pregnant woman, owing to rules on unfitness for work adopted by the public authorities, which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness . The fact that no man applied for the job is irrelevant .
2 . Although Directive 76/207 gives the Member States, in penalizing infringement of the prohibition of discrimination, freedom to choose between the various solutions appropriate for achieving its purpose, it nevertheless requires that, where a Member State opts for a sanction forming part of the rules on civil liability, any infringement of the prohibition of discrimination suffices in itself to make the person guilty of it fully liable, and no regard may be had to the grounds of exemption envisaged by national law .
……………
10 Consideration must be given to the question whether a refusal of employment in the circumstances to which the national court has referred may be regarded as direct discrimination on grounds of sex for the purposes of the Directive . The answer depends on whether the fundamental reason for the refusal of employment is one which applies without distinction to workers of either sex or, conversely, whether it applies exclusively to one sex .
11 The reason given by the employer for refusing to appoint Mrs Dekker is basically that it could not have obtained reimbursement from the Risicofonds of the daily benefits which it would have had to pay her for the duration of her absence due to pregnancy, and yet at the same time it would have been obliged to employ a replacement . That situation arises because, on the one hand, the national scheme in question assimilates pregnancy to sickness and, on the other, the Ziekengeldreglement contains no provision excluding pregnancy from the cases in which the Risicofonds is entitled to refuse reimbursement of the daily benefits .
12 In that regard it should be observed that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex . A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy . 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 .
13 In any event, the fact that pregnancy is assimilated to sickness and that the respective provisions of the Ziektewet and the Ziekengeldreglement governing reimbursement of the daily benefits payable in connection with pregnancy are not the same cannot be regarded as evidence of discrimination on grounds of sex within the meaning of the Directive . Lastly, in so far as as an employer’ s refusal of employment based on the financial consequences of absence due to pregnancy constitutes direct discrimination, it is not necessary to consider whether national provisions such as those mentioned above exert such pressure on the employer that they prompt him to refuse to appoint a pregnant woman, thereby leading to discrimination within the meaning of the Directive .
14 It follows from the foregoing that the answer to be given to the first question is that an employer is in direct contravention of the principle of equal treatment embodied in Articles 2(1 ) and 3(1 ) of Council Directive 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions if he refuses to enter into a contract of employment with a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences for him of employing a pregnant woman, owing to rules on unfitness for work adopted by the public authorities which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness .
Second question
15 In its second question the Hoge Raad asks whether the fact that there was no male candidate for the job is liable to alter the answer to the first question .
18 The answer to be given to the second question must therefore be that the fact that no man applied for the job does not alter the answer to the first question .
Third question
19 The third question relates to whether it is contrary to Articles 2 and 3 of the Directive for a legal action in damages based on breach of the principle of equal treatment to be capable of succeeding only if it is also proved that the employer is at fault and cannot avail himself of any ground exempting him from liability .
23 Article 6 of the Directive recognizes the existence of rights vesting in the victims of discrimination which can be pleaded in legal proceedings . Although full implementation of the Directive does not require any specific form of sanction for unlawful discrimination, it does entail that that sanction be such as to guarantee real and effective protection ( judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 23 ). It must, furthermore, have a real deterrent effect on the employer .
24 It must be observed that, if the employer’ s liability for infringement of the principle of equal treatment were made subject to proof of a fault attributable to him and also to there being no ground of exemption recognized by the applicable national law, the practical effect of those principles would be weakened considerably .
25 It follows that when the sanction chosen by the Member State is contained within the rules governing an employer’ s civil liability, any breach of the prohibition of discrimination must, in itself, be sufficient to make the employer liable, without there being any possibility of invoking the grounds of exemption provided by national law .
26 Accordingly, the answer must be that, although Directive 76/207 gives the Member States, in penalizing infringement of the prohibition of discrimination, freedom to choose between the various solutions appropriate for achieving its purpose, it nevertheless requires that, where a Member State opts for a sanction forming part of the rules on civil liability, any infringement of the prohibition of discrimination suffices in itself to make the person guilty of it fully liable, and no regard may be had to the grounds of exemption envisaged by national law .
….On those grounds,
THE COURT,
in answer to the questions referred to it by the Hoge Raad der Nederlanden, by judgment of 28 June 1988, hereby rules as follows :
( 1 ) An employer is in direct contravention of the principle of equal treatment embodied in Articles 2(1 ) and 3(1 ) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions if he refuses to enter into a contract of employment with a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences for him of employing a pregnant woman, owing to rules on unfitness for work adopted by the public authorities, which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness .
( 2 ) The fact that no man applied for the job does not alter the answer to the first question .
( 3 ) Although Directive 76/207 gives the Member States, in penalizing infringement of the prohibition of discrimination, freedom to choose between the various solutions appropriate for achieving its purpose, it nevertheless requires that, where a Member State opts for a sanction forming part of the rules on civil liability, any infringement of the prohibition of discrimination suffices in itself to make the person guilty of it fully liable, and no regard may be had to the grounds of exemption envisaged by national law .
Brown [1998] EUECJ C-394/96
( [1998] ICR 790,
“According to settled case-law of the Court of Justice, the dismissal of a female worker on account of pregnancy, or essentially on account of pregnancy, can affect only women and therefore constitutes direct discrimination on grounds of sex (see Case C-177/88 Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus [1990] ECR I-3941, paragraph 12; Hertz, cited above, paragraph 13; Case C-421/92 Habermann-Beltermann v Arbeiterwohlfahrt Bezirksverband [1994] ECR I-1657, paragraph 15; and Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567, paragraph 19).
As the Court pointed out in paragraph 20 of its judgment in Webb, cited above, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with ‘pregnancy and maternity’, Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman’s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. Article 10 of Directive 92/85 provides that there is to be no exception to, or derogation from, the prohibition of dismissal of pregnant women during that period, save in exceptional cases not connected with their condition (see, in this regard, paragraphs 21 and 22 of the judgment in Webb, cited above).
In replying to the first part of the first question, which concerns Directive 76/207, account must be taken of that general context.
At the outset, it is clear from the documents before the Court that the question concerns the dismissal of a female worker during her pregnancy as a result of absences through incapacity for work arising from her pregnant condition. As Rentokil points out, the cause of Mrs Brown’s dismissal lies in the fact that she was ill during her pregnancy to such an extent that she was unfit for work for 26 weeks. It is common ground that her illness was attributable to her pregnancy.
However, dismissal of a woman during pregnancy cannot be based on her inability, as a result of her condition, to perform the duties which she is contractually bound to carry out. If such an interpretation were adopted, the protection afforded by Community law to a woman during pregnancy would be available only to pregnant women who were able to comply with the conditions of their employment contracts, with the result that the provisions of Directive 76/207 would be rendered ineffective (see Webb, cited above, paragraph 26).
Although pregnancy is not in any way comparable to a pathological condition (Webb, cited above, paragraph 25), the fact remains, as the Advocate General stresses in point 56 of his Opinion, that pregnancy is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of her pregnancy. Those disorders and complications, which may cause incapacity for work, form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition.
In paragraph 15 of its judgment in Hertz, cited above, the Court, on the basis of Article 2(3) of Directive 76/207, also pointed out that that directive admits of national provisions guaranteeing women specific rights on account of pregnancy and maternity. It concluded that, during the maternity leave accorded to her under national law, a woman is protected against dismissal on the grounds of her absence.
Although, under Article 2(3) of Directive 76/207, such protection against dismissal must be afforded to women during maternity leave (Hertz, cited above, paragraph 15), the principle of non-discrimination, for its part, requires similar protection throughout the period of pregnancy. Finally, as is clear from paragraph 22 of this judgment, dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the
fact of pregnancy. Such a dismissal can affect only women and therefore constitutes direct discrimination on grounds of sex.
It follows that Articles 2(1) and 5(1) of Directive 76/207 preclude dismissal of a female worker at any time during her pregnancy for absences due to incapacity for work caused by an illness resulting from that pregnancy.
However, where pathological conditions caused by pregnancy or childbirth arise after the end of maternity leave, they are covered by the general rules applicable in the event of illness (see, to that effect, Hertz, cited above, paragraphs 16 and 17). In such circumstances, the sole question is whether a female worker’s absences, following maternity leave, caused by her incapacity for work brought on by such disorders, are treated in the same way as a male worker’s absences, of the same duration, caused by incapacity for work; if they are, there is no discrimination on grounds of sex.
It is also clear from all the foregoing considerations that, contrary to the Court’s ruling in Case C-400/95 Larsson v Føtex Supermarked [1997] ECR I-2757, paragraph 23), where a woman is absent owing to illness resulting from pregnancy or childbirth, and that illness arose during pregnancy and persisted during and after maternity leave, her absence not only during maternity leave but also during the period extending from the start of her pregnancy to the start of her maternity leave cannot be taken into account for computation of the period justifying her dismissal under national law. As to her absence after maternity leave, this may be taken into account under the same conditions as a man’s absence, of the same duration, through incapacity for work.
The answer to the first part of the first question must therefore be that Articles 2(1) and 5(1) of Directive 76/207 preclude dismissal of a female worker at any time during her pregnancy for absences due to incapacity for work caused by illness resulting from that pregnancy.
The second part of the first question
The second part of the first question concerns a contractual term providing that an employer may dismiss workers of either sex after a stipulated number of weeks of continuous absence.
It is well settled that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Case C-342/93 Gillespie and Others v Northern Health and Social Services Board and Others [1996] ECR I-475, paragraph 16).
Where it is relied on to dismiss a pregnant worker because of absences due to incapacity for work resulting from her pregnancy, such a contractual term, applying both to men and to women, is applied in the same way to different situations since, as is clear from the answer given to the first part of the first question, the situation of a pregnant worker who is unfit for work as a result of disorders associated with her pregnancy cannot be considered to be the same as that of a male worker who is ill and absent through incapacity for work for the same length of time.
Consequently, application of that contractual term in circumstances such as the present constitutes direct discrimination on grounds of sex.
The answer to the second part of the first question must therefore be that the fact that a female worker has been dismissed during her pregnancy on the basis of a contractual term providing that the employer may dismiss employees of either sex after a stipulated number of weeks of continuous
McKenna
(Social policy) [2005] EUECJ C-191/03 [2006] All ER (EC) 455,
“The first and fourth questions
25 By its first and fourth questions, which it is appropriate to examine together, the national court is essentially asking whether a sick-leave scheme which treats in the same way female workers suffering from a pregnancy-related illness and other workers suffering from an illness unrelated to pregnancy comes within the scope of Directive 76/207 or within that of Article 141 EC and Directive 75/117.
26 Ms McKenna and the Italian Government take the view that a scheme such as that in issue in the main proceedings is covered by Directive 76/207, inasmuch as it provides that absences resulting from a pregnancy-related illness are to be offset against sick-leave entitlement on other grounds, but that it is also covered by Article 141 EC and Directive 75/117, inasmuch as it results in a reduction in pay after 183 days of absence on grounds of a pregnancy-related illness.
27 The Board, together with Ireland and the Austrian and United Kingdom Governments, submits that such a scheme is covered only by Article 141 EC and Directive 75/117, as the element in issue in the main proceedings constitutes pay within the terms of those provisions and the reduction in income challenged by Ms McKenna follows directly and automatically from application of that scheme.
28 The Commission of the European Communities, by contrast, takes the view that working conditions are here in issue. The effects on pay are, it argues, merely incidental. Directive 76/207 alone is for that reason applicable.
29 It must be recalled in this regard that the continued payment of wages to a worker in the event of illness falls within the concept of -pay- within the meaning of Article 141 EC (Case 171/88 Rinner-Kühn [1988] ECR 2743, paragraph 7), a concept which comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his or her employment from his or her employer, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis (Case C-66/96 Høj Pedersen and Others [1998] ECR I-7327, paragraph 32).
30 Pay within the terms of Article 141 EC and Directive 75/117 cannot also come within the scope of Directive 76/207. As is clear from the second recital in its preamble, Directive 76/207 does not apply to -pay- within the meaning of the abovementioned provisions (see Case C-‘342/93 Gillespie and Others [1996] ECR I-‘475, paragraph 24).
31 A scheme such as that in issue in the main proceedings defines the conditions governing maintenance of the worker-s pay in the event of absence on grounds of illness. It makes the maintenance of full pay subject to the condition that a maximum annual period of sick leave is not exceeded and, if that period is exceeded, it provides for the maintenance of pay at 50% of its level for a maximum total period determined over the course of four years.
32 Such a scheme, which results in a reduction in pay and subsequently in an exhaustion of entitlement to pay, operates automatically on the basis of an arithmetical calculation of the days of absence on grounds of illness.
33 The rules established thus come within the scope of Article 141 EC and Directive 75/117 (see by way of analogy, in respect of a system for acquiring entitlement to a higher salary on the basis of rules on seniority, Case C-‘184/89 Nimz [1991] ECR I-‘297, paragraphs 9 and 10).
34 The fact that a reduction or extinction of entitlement to maintenance of pay is not immediate but occurs on the expiry of maximum periods does not deprive those rules of their automatic nature once the conditions laid down have been satisfied.
35 The answer to the first and fourth questions referred must therefore be that a sick-leave scheme which treats identically female workers suffering from a pregnancy-related illness and other workers suffering from an illness that is unrelated to pregnancy comes within the scope of Article 141 EC and Directive 75/117.
The second, third and fifth questions
37 By those three questions the national court is essentially asking whether Article 141 EC and Directive 75/117 are to be construed as meaning that the following constitute discrimination on grounds of sex:
– a rule of a sick-leave scheme which provides, in the case of female workers who are absent prior to maternity leave because of a pregnancy-related illness, as well as in the case of male workers who are absent as a result of any other illness, for a reduction in pay in the case where the absence exceeds a certain duration;
– a rule of a sick-leave scheme which provides for absences on grounds of illness to be offset against a maximum total number of days of paid sick leave to which a worker is entitled during a given period, irrespective of whether the illness is or is not pregnancy-related.
43 Community law first of all guarantees specific protection against dismissal up to the end of maternity leave.
44 The Court has ruled that a woman is protected, during her maternity leave, against dismissal due to absence (Case C-‘179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I-‘3979, paragraph 15).
45 By contrast, in the case of an illness manifesting itself after such maternity leave, the Court has ruled there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness, and that such a pathological condition is covered by the general rules applicable in the event of illness. With regard to such a situation, the Court concluded that Community law does not preclude dismissals which are the result of absences due to an illness attributable to pregnancy or confinement (Handels- og Kontorfunktionærernes Forbund, cited above, paragraphs 16 and 19).
46 With regard to the possibility of a female worker being dismissed by reason of a pregnancy-related illness which arose prior to her maternity leave, the Court has held that, although pregnancy is not in any way comparable to a pathological condition, it is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of her pregnancy. The Court found that those disorders and complications, which could cause incapacity for work, formed part of the risks inherent in the condition of pregnancy and were thus a specific feature of that condition (Case C-‘394/96 Brown [1998] ECR I-‘4185, paragraph 22).
47 The Court accordingly ruled that protection against dismissal had to be accorded to women not only during maternity leave but also for the entire duration of their pregnancy, after stressing that the risk of dismissal may detrimentally affect the physical and mental state of female workers who are pregnant or have recently given birth, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy. The Court held that dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the fact of pregnancy. From this the Court concluded that such a dismissal can affect only women and therefore constitutes direct discrimination on grounds of sex (Brown, cited above, paragraphs 18 and 24).
48 In view of the harmful effects which the risk of dismissal may have on the physical and mental state of pregnant workers, workers who have recently given birth or those who are breastfeeding, Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1) laid down a prohibition of dismissal during a period from the beginning of pregnancy to the end of maternity leave.
49 In addition to protection against loss of employment, Community law also guarantees, within certain limits, protection for the income of a worker who is pregnant or has recently given birth.
50 The Court has pointed out in this regard that women who are on maternity leave are in a special position which requires them to be afforded special protection, but which is not comparable either to that of a man or to that of a woman actually at work (Gillespie and Others, paragraph 17). The Court went on to rule that neither Article 119 of the EEC Treaty (which became Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC)) nor Article 1 of Directive 75/117 required that women should continue to receive full pay during maternity leave, while stating that the amount payable could not, however, be so low as to undermine the purpose of maternity leave, namely the protection of women before and after giving birth Gillespie and Others, paragraph 20).
51 With regard also to maternity leave, Directive 92/85, which was not applicable ratione temporis to the dispute which resulted in the judgment in Gillespie and Others, provides in Article 11(2)(b) that maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2 must be ensured. Article 11(3) provides that the allowance referred to in point 2(b) shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health.
52 The Court has also ruled, by way of an interpretation given in the context of a dismissal but valid also in regard to the remuneration paid to a female worker, that, where pathological conditions caused by pregnancy or childbirth arise after the end of maternity leave, they are covered by the general rules applicable in the event of illness. The Court added that the sole question is whether a female workers absences, following maternity leave, caused by her incapacity for work brought on by such disorders, are treated in the same way as a male workers absences, of the same duration, caused by incapacity for work; if they are, there is no discrimination on grounds of sex (Brown, paragraph 26). The Court thus acknowledged that a pathological condition linked to pregnancy or childbirth and arising after maternity leave may result in a reduction in remuneration under the same conditions as any other illness.
53 With regard to the case of a pregnancy-related illness affecting a worker before her maternity leave, the Court pointed out in paragraph 33 of its judgment in Høj Pedersen and Others, cited above, replicating the terms used in paragraph 22 of its judgment in Brown, that the disorders and complications linked to pregnancy, which may cause incapacity for work, form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition. The Court went on to point out that, within the context of the dispute in the main proceedings, a woman was deprived, before the beginning of her maternity leave, of her full pay when her incapacity for work was the result of a pregnancy-related pathological condition, even though, under the national legislation in issue, all workers were in principle entitled to continue to be paid in full in the event of incapacity for work. In those circumstances, the Court ruled that the application of legislative provisions such as those at issue in the main proceedings in that case involved discrimination against women (Høj Pedersen and Others, paragraphs 34, 35 and 37).
54 It follows that, as Community law stands at present, a female worker:
– cannot be dismissed during her maternity leave by reason of her condition or, prior to such leave, by reason of an illness related to the pregnancy and arising before such leave;
– may, in appropriate cases, be dismissed by reason of an illness related to pregnancy or childbirth and arising after the maternity leave;
– may, in appropriate cases, suffer a reduction in pay either during maternity leave or, after such leave, in the event of an illness related to pregnancy or childbirth and arising after such leave.
55 It also follows from the foregoing that the Court has not hitherto been asked to specify whether a female worker is entitled, in any event, to continue to receive full pay in the event of a pregnancy-related illness arising prior to her maternity leave, even if the contested national rule provides for the application of a reduction in the same measure to the remuneration paid to a worker in the event of an illness unrelated to a condition of pregnancy.
56 Finally, it follows from the foregoing that the condition of pregnancy is not comparable to a pathological illness and that the disorders and complications linked to pregnancy and causing incapacity for work form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition (see paragraphs 46 and 53 of the present judgment).
The remuneration of a female worker during pregnancy
57 It does not necessarily follow from the finding that pregnancy-related illnesses are sui generis that a female worker who is absent by reason of a pregnancy-related illness is entitled to maintenance of full pay, whereas a worker absent by reason of an illness unrelated to pregnancy does not have such a right.
58 It is first necessary to point out in this regard that, so far as dismissals are concerned, the special nature of a pregnancy-related illness may only be accommodated by denying an employer the right to dismiss a female worker for that reason. By contrast, so far as pay is concerned, the full maintenance thereof is not the only way in which the special nature of a pregnancy-related illness may be accommodated. That special nature may, indeed, be accommodated within the context of a scheme which, in the event of the absence of a female worker by reason of a pregnancy-related illness, provides for a reduction in pay.
59 Next, it is necessary to bear in mind that, as Community law stands at present, no general provision or principle thereof requires that women should continue to receive full pay during maternity leave, provided that the amount of remuneration payable is not so low as to undermine the Community-law objective of protecting female workers, in particular before giving birth (see, to that effect, Gillespie and Others, paragraph 20).
60 If a rule providing, within certain limits, for a reduction in pay to a female worker during her maternity leave does not constitute discrimination based on sex, a rule providing, within the same limits, for a reduction in pay to that female worker who is absent during her pregnancy by reason of an illness related to that pregnancy also cannot be regarded as constituting discrimination of that kind.
61 In those circumstances, it must be concluded that, as it stands at present, Community law does not require the maintenance of full pay for a female worker who is absent during her pregnancy by reason of an illness related to that pregnancy.
62 During an absence resulting from such an illness, a female worker may thus suffer a reduction in her pay, provided that she is treated in the same way as a male worker who is absent on grounds of illness, and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers.
Offsetting of absences on grounds of illness against a maximum total number of days of paid sick-leave to which a worker is entitled over a specified period
69 The answer to the second, third and fifth questions must therefore be that Article 141 EC and Directive 75/117 must be construed as meaning that the following do not constitute discrimination on grounds of sex:
– a rule of a sick-leave scheme which provides, in regard to female workers absent prior to maternity leave by reason of an illness related to their pregnancy, as also in regard to male workers absent by reason of any other illness, for a reduction in pay in the case where the absence exceeds a certain duration, provided that the female worker is treated in the same way as a male worker who is absent on grounds of illness and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers;
– a rule of a sick-leave scheme which provides for absences on grounds of illness to be offset against a maximum total number of days of paid sick-leave to which a worker is entitled over a specified period, whether or not the illness is pregnancy-related, provided that the offsetting of the absences on grounds of pregnancy-related illness does not have the effect that, during the absence affected by that offsetting after the maternity leave, the female worker receives pay that is lower than the minimum amount to which she was entitled during the illness which arose while she was pregnant.
Handels og Kontorfunktionaerernes v Dansk Arbejdsgiverforening.
[1991] IRLR 31, [1990] EUECJ R-179/88, [1992] ICR 332, [1990] ECR I-3979
“On the one hand it is claimed that the dismissal of a woman on account of pregnancy, confinement or repeated periods of absence due to an illness attributable to pregnancy or confinement is – irrespective of the time when that illness occurs – contrary to the principle of equal treatment, since a male worker is not subject to such disorders and hence cannot be dismissed on that ground .
9 On the other hand it is contended that an employer cannot be prohibited from dismissing a female worker on account of her frequent periods of sick leave solely because the illness is attributable to pregnancy or confinement . Dismissal on that ground is insufficient proof of infringement of the principle of equal treatment . Such a prohibition, which would apply to an employer for many years after the confinement, would be liable to entail not only administrative difficulties and unfair consequences for the employers but also negative repercussions on the employment of women . Furthermore, although Article 2(3 ) of the Directive allows Member States to introduce provisions designed to protect women in connection with pregnancy and maternity, it gives no guidance as to the exact content of such provisions .
10 It should be noted at the outset that the purpose of the Directive, according to Article 1(1 ), is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions .
11 Article 2(1 ) of the Directive provides that “… the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status “. Under Article 5(1 ) “application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex “.
12 Article 2(3 ) of the Directive further states : “This directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity “.
13 It follows from the provisions of the Directive quoted above that the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex, as is a refusal to appoint a pregnant woman ( see judgment of today’ s date in Case C-177/88 Dekker v VJM-Centrum [1990] ECR I-3941 ).
14 On the other hand, the dismissal of a female worker on account of repeated periods of sick leave which are not attributable to pregnancy or confinement does not constitute direct discrimination on grounds of sex, inasmuch as such periods of sick leave would lead to the dismissal of a male worker in the same circumstances .
15 The Directive does not envisage the case of an illness attributable to pregnancy or confinement . It does, however, admit of national provisions guaranteeing women specific rights on account of pregnancy and maternity, such as maternity leave . During the maternity leave accorded to her pursuant to national law, a woman is accordingly protected against dismissal due to absence . It is for every Member State to fix periods of maternity leave in such a way as to enable female workers to absent themselves during the period in which the disorders inherent in pregnancy and confinement occur .
16 In the case of an illness manifesting itself after the maternity leave, there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness . Such a pathological condition is therefore covered by the general rules applicable in the event of illness .
17 Male and female workers are equally exposed to illness . Although certain disorders are, it is true, specific to one or other sex, the only question is whether a woman is dismissed on account of absence due to illness in the same circumstances as a man; if that is the case, then there is no direct discrimination on grounds of sex .
18 Similarly, in such a case there is no reason to consider the question whether women are absent owing to illness more often than men, and whether there exists therefore any indirect discrimination .
19 Accordingly, the answer to be given to the first question is that, without prejudice to the provisions of national law adopted pursuant to Article 2(3 ) of Council Directive 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, Article 5(1 ) of that directive, in conjunction with Article 2(1 ) thereof, does not preclude dismissals which are the result of absences due to an illness attributable to pregnancy or confinement .
Webb v EMO Air Cargo (UK) Ltd (No 1)
[1992] UKHL 15
Lord Keith of Kinkel
“This appeal involves a difficult and interesting question in the field of sex discrimination, namely whether an employer is guilty of such discrimination, direct or indirect, when he dismisses a female employee, shortly after engaging her, on learning that she is pregnant and therefore will not be available for work at the time when the task for which she was specifically recruited falls to be performed.
The facts of the case are stated in the decision of the Industrial Tribunal, the appellant, Ms. Webb, being there described as “the applicant” and the employers, EMO Air Cargo (U.K.) Ltd., (“EMO”) as “the respondents”, their managing director being Mr. Fullicks. The statement of facts is as follows:
“The applicant was engaged by the respondents by a letter of 26 June 1987 as an Import Operations Clerk, subject to a three months probationary period. She started work on 1 July 1987. The respondents have 16 employees (male and female), fo
The appellant’s case alleges direct discrimination contrary to sections 1(l)(a) or alternatively indirect discrimination contrary to sections 1(1)(b). It is the case on direct discrimination which poses the really difficult problem. Section l(l)(a) requires a comparison to be made between the treatment accorded to a woman and the treatment accorded or that would be accorded to a man. Here there is no treatment actually accorded to a man which can be the subject of comparison. So it is necessary to consider what treatment would be accorded to a man, and under section 5(3) it is necessary to assume that the relevant circumstances in the case of the hypothetical man are the same as or not materially different from the circumstances in which the treatment complained of was accorded to the woman. What in this case are the relevant circumstances which are to be assumed to be present in the case of the hypothetical man? Obviously they cannot include the circumstance that the man is pregnant, for that is impossible. This led a majority of the Employment Appeal Tribunal in Turley v. Allders Department Stores Ltd. [1980] I.C.R. 66 to hold that dismissal of a woman on the pure ground of pregnancy could not constitute unlawful discrimination, comparison with a man who was in like position being impossible. Ms. Pat Smith dissented, taking the view that the proper course was to compare the position of a pregnant woman with that of a man who by reason of some medical condition required a period off work equivalent to what a woman would require for her confinement. In Hayes v.Malleable Working Men’s Club and Institute [1985] I.C.R. 703 an Employment Appeal Tribunal differently constituted upheld the dissenting opinion of Ms. Smith in Turley’s case. The Court of Appeal followed the same line in the present case. Glidewell L.J. said ([1992] 2 All E.R. 43, 52):
“To postulate a pregnant man is an absurdity, but I see no difficulty in comparing a pregnant woman with a man who has a medical condition which will require him to be absent for the same period of time and at the same time as does the woman’s pregnancy.”
There can be no doubt that in general to dismiss a woman because she is pregnant or to refuse to employ a woman of child bearing age because she may become pregnant is unlawful direct discrimination. Child-bearing and the capacity for child-bearing are characteristics of the female sex. So to apply these characteristics as the criterion for dismissal or refusal to employ is to apply a gender-based criterion, which the majority of this House in James v. Eastleigh Borough Council [1990] 2 AC 751 held to constitute unlawful direct discrimination. In that case the council had adopted the attainment of pensionable age, 65 for men and 60 for women, as the condition for being eligible for free use of their swimming pool. In the present case, however, there was not any direct application of a gender-based criterion. If the appellant’s expected date of confinement had not been so very close to that of Valerie Stewart she would not have been dismissed. It was her expected non-availability during the period when she was needed to cover for Valerie Stewart which was the critical factor. The question is whether it is legitimate to make a comparision between the non-availability of a woman by reason of expected confinement and the non-availability of a man, which may or may not be for medical reasons, for the purpose of postulating relevant circumstances under section 5(3) of the Act. If it is not legitimate, then cases can be envisaged where somewhat surprising results would follow. For example, an employer might require to engage extra staff for an event due to take place oyer a particular period, such as the Wimbledon fortnight or the Olympic Games, and for which a period of training is required. He advertises some months in advance and ten candidates apply – five men and five women, all better qualified than the men, one of whom is pregnant, her confinement being expected to be on the first day of the event. The employer requires only four extra staff and he engages the four women who are not pregnant. Has there been direct discrimination against the pregnant woman? Mr. Sedley Q.C., for the appellant here, would answer that question affirmatively, saying that the pregnant woman has been deprived, on grounds of her sex, of one-fifth of a chance of being selected and should be compensated accordingly. He relies on the “but for their sex” test adumbrated by Lord Goff of Chieveley in Reg, v. Birmingham County Council, Ex parte Equal Opportunities Commission [1989] A.C. 1155. That was a case where the Council operated single sex grammar schools for boys and for girls. There were fewer places in the girls’ schools than there were in the boys’ and as a result the girls had to gain higher marks in the entrance examination than did the boys in order to obtain a place. It was held in the Court of Appeal and this House that the Council was in breach of the Act of 1975. Lord Goff of Chieveley, in the course of a speech concurred in by the other members of the Appellate Committee, said at p. 1194:
“There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex.”
This test was approved and applied by Lord Bridge of Harwich in James v. Eastleigh Borough Council (supra) at pp. 765-766. In my opinion, however, the test so formulated is not capable of application to the circumstances of this case. The appellant was not dismissed simply because she was pregnant but because her pregnancy had the consequence that she would not be available for work at the critical period. It is true that but for her sex she would not have been pregnant, and but for her pregnancy she would not have been unavailable then. If the “but for” test applies to that situation, it must equally apply where the reason for the woman’s being unavailable at the critical time is that she is then due to have an operation of a peculiarly gynaecological nature, such as a hysterectomy. But a man may require to undergo an operation for some condition which is peculiar to males, such as an abnormal prostate. Is the “but for his sex” test to be applied so as to produce a finding of unlawful discrimination where he is not engaged because the impending operation will make him unavailable when his services are particularly required? Both in the Birmingham County Council case and in the James case members of one sex were treated unfavourably by comparison with actual members of the other sex. The problem of postulating relevant circumstances for the purpose of making a comparison with the treatment accorded to hypothetical members of the opposite sex did not arise. The circumstances in the case of a woman due to have a hysterectomy are different from the circumstances in the case of a man due to have a prostate operation. The question is whether they are materially different, and the answer must be that they are not, because both sets of circumstances have the result that the person concerned is not going to be available at the critical time. Then it has to be considered whether there is something special about pregnancy which ought to lead to the conclusion that the case of a woman due to be unavailable for that reason is materially different from the case of a man due to be unavailable because of an expected prostate operation. In logic, there would not appear to be any valid reason for that conclusion. It is true that pregnancy may be said to be a normal condition, not an abnormal pathological condition such as to require a hysterectomy, but the consequences of both are the same, namely unavailability of the person when particularly needed. The argument for the appellant is that when comparison is made between a pregnant woman, who is going to be unavailable on account of her confinement at the critical time, and a man, then because a man could not be unavailable for the same reason dismissal of or failure to engage the pregnant woman constitutes discrimination. But the correct comparison is not with any man but with an hypothetical man who would also be unavailable at the critical time. The relevant circumstance for purposes of the comparison required by section 5(3) to be made is expected unavailability at the material time. The precise reason for the unavailability is not a relevant circumstance, and in particular it is not relevant that the reason is a condition which is capable of affecting only women, or for that matter only men.
……………
I conclude that on a proper construction of the relevant provisions of the Act of 1975 the appellant’s dismissal did not in the circumstances of this case, as found by the Industrial Tribunal, constitute direct unlawful discrimination.
Turning now to the matter of indirect discrimination, the Industrial Tribunal found that subparagraphs (1) and (iii) of section 1(1)(b) of the Act of 1975 were satisfied as regards the appellant. As regards subparagraph (i), the Tribunal’s reason was that the relevant condition in their view was that the worker should not in July 1987 be in such a physical condition as to be unable to do the job in question, and that more women than men were likely to be unable to satisfy this condition, on account of the possibility of pregnancy. As to subparagraph (iii), the Tribunal found that the appellant suffered the detriment of dismissal because she could not comply with this condition. But the Tribunal held that the employer had shown the condition to be justifiable irrespective of the sex of the appellant on account of the reasonable needs of the employers’ business, which were that there should be someone to cover for Valerie Stewart during her maternity leave, which the appellant would be unable to do. So the Tribunal decided that the case fell within subparagraph (ii) of sections 1(1)(b), and that there had therefore been no indirect discrimination. In doing so it relied upon the test of what is justifiable expressed by Eveleigh L.J. in Ojutiku and Obuzuni v. Manpower Services Commission [1982] I.C.R. 661 at p. 668.
After the Industrial Tribunal had given its decision, there was decided in the Court of Appeal the case of Hampson v. Department of Education and Science [1990] 2 All E.R. 25, in which Balcombe L.J. thus formulated the test of what was “justifiable” under subparagraph (ii):
“In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition. This construction is supported by the recent decision of the House of Lords in Rainey v. Greater Glasgow Health Board [1987] ICR 129, a case under the Equal Pay Act 1970, and turning on the provisions of section 1(3) of that Act . . .”.
This test must now be regarded as the appropriate one and as superseding that of Eveleigh L.J. in Ojutiku.
It was submitted on behalf of the appellant that since this was the correct test and it had not been applied by the Industrial Tribunal the case should be remitted for reconsideration in the light of it. The same submission was made to the Court of Appeal, which rejected it upon the view that if the Industrial Tribunal had applied the correct test as formulated by Balcombe L.J. it would inevitably have come to the same conclusion. I agree with that view and find it unnecessary to say more.
Up to this point I have proceeded upon the basis of the relevant provisions of the Act of 1975 considered in isolation. It is, however, necessary to take into account certain recent decisions of the European Court of Justice. The decisions are concerned with the interpretation of Directive 76/207 of the Council of the European Communities, Article 2(1) of which states:
“For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.”
The first decision is Dekker v. Stichting Vormingscentrum voor Jong Volwassenen (V.J.V. -Centrum) Plus [1990] ECR I-3941. The facts were that Mrs. Dekker applied for a job with V.J.V. and informed the selection committee that she was three months pregnant. The committee recommended her to the board of V.J.V. as being the most suitable candidate for the job, but the board decided not to employ her. The reason was that under the applicable law of the Netherlands V.J.V. would have been required to pay Mrs. Dekker 100% of her salary while she was absent owing to her confinement, but would not have been in a position to recover the amount so paid from its insurers because her pregnancy was a condition known about at the time her employment would have commenced. In that situation V.J.V. would not have been able to afford to pay a replacement for Mrs. Dekker and this might have led to a staff shortage. The Dutch Courts held that the domestic equal treatment legislation had been breached, but that V.J.V. had a justifiable ground for the breach. The Supreme Court, considering that the true interpretation of the Community Directive had a bearing on the meaning to be attributed to the domestic legislation, referred a number of questions to the European Court, the first of which asked:
“Is an employer directly or indirectly in breach of the principle of equal treatment laid down in Articles 2(1) and 3(1) of the Directive (Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment of men and women as regards access to employment . . . ) 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 . . . ?”
In relation to this question the relevant passages in the judgment of the Court were these:
“10. Consideration must be given to the question whether a refusal of employment in the circumstances to which the national court has referred may be regarded as direct discrimination on grounds of sex for the purposes of the Directive. The answer depends on whether the fundamental reason for the refusal of employment is one which applies without distinction to workers of either sex or, conversely, whether it applies exclusively to one sex.
“11. The reason given by the employer for refusing to appoint Mrs. Dekker is basically that it could not have obtained reimbursement from the Risicofonds of the daily benefits which it would have had to pay her for the duration of her absence due to pregnancy, and yet at the same time it would have been obliged to employ a replacement. That situation arises because, on the one hand, the national scheme in question assimilates pregnancy to sickness and, on the other, the Ziekengeldreglement contains no provision excluding pregnancy from the cases in which the Risicofonds is entitled to refuse reimbursement of the daily benefits.
“12. In that regard it should be observed that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. 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.
“13. In any event, the fact that pregnancy is assimilated to sickness and that the respective provisions of the Ziektewet and the Ziekengeldreglement governing reimbursement of the daily benefits payable in connection with pregnancy are not the same cannot be regarded as evidence of discrimination on grounds of sex within the meaning of the Directive. Lastly, in so far as as an employer’s refusal of employment based on the financial consequences of absence due to pregnancy constitutes direct discrimination, it is not necessary to consider whether national provisions such as those mentioned above exert such pressure on the employer that they prompt him to refuse to appoint a pregnant woman, thereby leading to discrimination within the meaning of the Directive.
“14. It follows from the foregoing that the answer to be given to the first question is that an employer is in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions if he refuses to enter into a contract of employment with a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences for him of employing a pregnant woman, owing to rules on unfitness for work adopted by the public authorities which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness.”
The second decision is that in Handels-og Kontorfunktionaerernes Forbund i Danmark v. Dansk Arbejdsgiverforening [1990] ECR I-3979, given on the same day as the decision in the Dekker case. A Mrs. Hertz gave birth to a child after a complicated pregnancy during which she was on sick leave with the consent of her employer. She was given maternity leave, but later took frequent periods of sick leave due to complications arising from her confinement. After these had amounted to 100 days in one year her employer gave her notice of dismissal. Mrs. Hertz complained that the dismissal contravened the Danish equal treatment law, and the Danish Supreme Court referred to the European Court the question whether dismissal on account of absence due to illness attributable to pregnancy or confinement was in breach of the Directive 76/207, the answer to that question being considered relevant to the true interpretation of the Danish equal treatment law. The Court answered the question in the negative. After citing various provisions of the Directive the judgment continues:
………………….
The Directive 76/207 does not have direct effect upon the relationship between a worker and an employer who is not the State or an emanation of the State, but nevertheless it is for a United Kingdom court to construe domestic legislation in any field covered by a Community Directive so as to accord with the interpretation of the Directive as laid down by the European Court, if that can be done without distorting the meaning of the domestic legislation: Duke v. G.E.C. Reliance Ltd. [1988] AC 618, per Lord Templeman at pp. 639-640. This is so whether the domestic legislation came after or, as in this case, preceded the Directive: Marleasing S.A. v. La Comercial Internacional De Alimentacion S.A. 1992 1 CMLR 305. That was a case where a Spanish company had been founded with the alleged purpose of defrauding the creditors of one of its founders. A provision of the Spanish Civil Code on the validity of contracts laid down that contracts lacking cause or whose cause was unlawful should have no legal effect. A creditor of the company relied upon this provision in order to obtain a declaration that the instrument incorporating the company was invalid. The company relied in its defence upon Article 11 of the First Council Directive 68/151, which contained an exhaustive list of the cases in which the nullity of a company might be declared. The list did not include lack of lawful cause. The Article had not been implemented in Spanish national law. The European Court held that the Spanish courts must not interpret the relevant provision of the Civil Code in such a manner that the nullity of a public limited company might be ordered on grounds other than those listed in Article 11 of the Directive. The question being whether or not that might be done, the European Court said in its judgment at p. 322:
“(8) In order to reply to that question, it should be observed that, as the Court pointed out in Case 14/83, Von Colson and Kamann v. [Land] Nordrhein-Westfalen, [1984] ECR 1891 the member-States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 EEC to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of member-States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 EEC.
“(9) It follows that the requirement that national law must be interpreted in conformity with Article 11 of Directive 68/151 precludes the interpretation of provisions of national law relating to public limited companies in such a manner that the nullity of a public limited company may be ordered on grounds other than those exhaustively listed in Article 11 of the directive in question.”
It is to be observed that the provision of Spanish law in issue in that case was of a general character capable of being construed either widely or narrowly. It did not refer specifically to the grounds upon which the nullity of a public limited company might be ordered. If it had done so, and had included among such grounds the case where the company had been formed with the purpose of defrauding creditors of one of the corporators, the Spanish court would have been entitled and bound to give effect to it notwithstanding the terms of the Directive. As the European Court said, a national court must construe a domestic law to accord with the terms of a Directive in the same field only if it is possible to do so. That means that the domestic law must be open to an interpretation consistent with the Directive whether or not it is also open to an interpretation inconsistent with it.
The European Court of Justice did not, in the Dekker and Herz cases, have to consider the situation where a woman, on account of her pregnancy, will not be able to carry out, at the time when her services are required, the particular job for which she is applying or for which she has been engaged. The two decisions do not give any clear indication whether in such a situation the Court would regard the fundamental reason for the refusal to engage the woman or for dismissing her as being her unavailability for the job and not her pregnancy. In the event of the Court arriving at a decision that the latter and not the former is the correct view for the purposes of the Directive 76/207, it would be necessary for this House to consider whether it is possible to construe the relevant provisions of the Act of 1975 in such a way as to accord with such decision. Further, it is not impossible to envisage that the sort of situation which existed in the present case might arise in circumstances where the Directive 76/707 has direct application, namely where the employer is the State or an emanation of the State. So I think it appropriate that before final judgment is given on this appeal there should be referred to the European Court of Justice the following question:
“Is it discrimination on grounds of sex contrary to Directive 76/207 for an employer to dismiss a female employee (‘the appellant’)
(a) whom he engaged for the specific purpose of replacing (after training) another female employee during the latter’s forthcoming maternity leave,
(b) when, very shortly after appointment, the employer discovers that the appellant herself will be absent on maternity leave during the maternity leave of the other employee, and the employer dismisses her because he needs the job holder to be at work during that period,
(c) had the employer known of the pregnancy of the appellant at the date of appointment, she would not have been appointed, and
(d) the employer would similarly have dismissed a male employee engaged for this purpose who required leave of absence at the relevant time for medical or other reasons?”
I understand that all your Lordships agree that there should be a reference accordingly, and that final disposal of the appeal should be postponed until the decision of the European Court of Justice has been made available.
Secretary of State for Work and Pensions & Ors v SFF & Ors
[2015] UKUT 502 (AAC)
UPPER TRIBUNAL JUDGE WARD
“Domestic arrangements for maternity leave and pay
18. There are three types of maternity leave. Compulsory maternity leave, reflecting Article 8(2) of the 1992 Directive, is provided for in section 72 of the Employment Rights Act 1996 and need not detain us. Section 71 creates ordinary maternity leave (“OML”), while section 73 creates additional maternity leave (“AML”). The detail, however, appeared, at the time we are concerned with, in the Maternity and Parental Leave etc Regulations 1999/3312 (as amended). The differences between OML and AML are much less than their similarities. The rights attaching to AML were assimilated to those under OML under the impact of discrimination legislation: see Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] EWHC 483 at [50] –[58], a case which led to the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008/1966, which effected the assimilation. A more detailed analysis is unnecessary in the light of the position the Secretary of State has adopted in the post-hearing submissions, namely that both OML and AML fall within the scope of Article 8 of the 1992 Directive and thus that the national rules on the duration of maternity leave for the purposes of Article 8 of the 1992 Directive provide for a period of 52 weeks leave. (OML runs for broadly a period of 26 weeks from its commencement, the date of which can within limits be stipulated by the female employee concerned. AML can then run for a further 26 weeks.) Those who are in employment are entitled to statutory maternity pay for a 39 week period starting from, at earliest, the beginning of the 11th week before the expected week of confinement (unless the baby is born before then) and at latest the day after the baby is born. (I do not deal here with the introduction, from April 2015, of statutory shared parental pay, which postdates the matters with which I am concerned.)
Key points from Saint Prix
19. It is not necessary to rehearse all the learning from the CJEU’s judgment. However, in addressing the questions before me I note in particular:
a. that the concept of ”worker” within the meaning of Article 45 TFEU, insofar as it defines the scope of a fundamental freedom provided for by the EU Treaty, must be interpreted broadly: Saint Prix, [33]; and
b. the CJEU’s concern at the “chilling” effect on the exercise of freedom of movement if a woman who was pregnant in the host State and gave up work as a result, if only for a short period, risked losing her status as a worker in that State: Saint Prix, [44].
The nature of the Saint Prix right: a right to be assessed prospectively or retrospectively?
20. Fundamental to whether a person is a “worker” or not is whether she is on the employment market. That may be reflected in actually being employed or, for instance, in one of the extensions of the concept provided for in earlier caselaw and subsequently codified in Art 7(3) of the Directive. Saint Prix at [41] provides a further such example (emphasis added):
“The fact that she was not actually available on the employment market of the host Member State for a few months does not mean that she has ceased to belong to that market during that period, provided she returns to work or finds another job within a reasonable period after confinement (see, by analogy, Orfanopoulos and Oliveri, C-482/01 and C-493/01, EU:C:2004:262, paragraph 50).”
I return below to the questions of the period and the proviso referred to in the above paragraph: for the moment, I merely note the recognition that late pregnancy and childbirth are not, of themselves, enough to take a woman off the employment market (and so outside the scope of Article 45).
21. Women who are pregnant and who subsequently give birth may be in an infinite variety of circumstances and, where they have a choice, may choose to exercise it in a variety of different ways. This will include some who decide that they will not once again become active on the employment market once, following the aftermath of childbirth, they would be in a position to do so. Such a choice, though it be made for entirely understandable reasons, such as in order to look after a young child, results in the loss of worker status: see e.g. C-325/09 Dias. From the passage quoted above I would be minded to approach the issue as primarily one of the woman’s intention, but subject to the special protection conferred by the CJEU’s judgment. That there should such special protection is consistent with a number of aspects of pregnancy and maternity, including that things do not always go smoothly for mother or child and that some women may simply not know their intentions with regard to future employment until some time after the birth has occurred.
22. Against that background, I do not view the proviso in [41] of Saint Prix as creating a condition precedent to the right coming into existence, which would have the consequence that the existence of the right could only be assessed retrospectively, but as a condition subsequent for terminating it where it is not met. To treat it in the former manner would be to create a prolonged period of uncertainty, with the sort of potential “chilling “ effect [44] of Saint Prix cautions against. It would deprive a woman (and it should not be forgotten that we are dealing here primarily with those who do not have the protection afforded by an ongoing contract of employment) of the benefits of “worker” status, including in relation to such matters as are contemplated by Article 7 of Regulation 493/11, just when, in late pregnancy and the aftermath of childbirth, she might particularly need them. To treat it in the latter way means that a woman is protected by her worker status until such time, not exceeding the end of the “reasonable period” contemplated by [47] of Saint-Prix, as she by her words or actions shows an intention not to be part of the employment market.
23. Such an approach is consistent with cases such as C-340/97Nazli and with Orfanopoulos in which Nazli (a case on the Turkish agreement) was cited with approval. In Nazli the CJEU held:
“40. In particular, while legal employment for an uninterrupted period of one, three or four years respectively is in principle required in order for the rights provided for in the three indents of Article 6(1) to be established, the third indent of that provision implies the right for the worker concerned, who is already duly integrated into the labour force of the host Member State, to take a temporary break from work. Such a worker thus continues to be duly registered as belonging to the labour force of that State provided that he actually finds another job within a reasonable period, and therefore enjoys a right to reside there during that period.
41. It follows from the foregoing considerations that the temporary break in the period of active employment of a Turkish worker such as Mr Nazli while he is detained pending trial is not in itself capable of causing him to forfeit the rights which he derives directly from the third indent of Article 6(1) of Decision No 1/80, provided that he finds a new job within a reasonable period after his release.
42. A person’s temporary absence as a result of detention of that kind does not in any way call into question his subsequent participation in working life, as is moreover demonstrated by the main proceedings, where Mr Nazli looked for work and indeed found a steady job after his release.”
In other words, where a person faces an unavoidable break in circumstances which are recognised by EU law, the question is whether there is something which “in any way call[s] into question [a person’s] subsequent participation in working life.” The reasonable period gives the person a fair opportunity to demonstrate that there is no such thing.
35. I therefore conclude that in the UK the “reasonable period” for the purposes of a Saint Prix right is to be determined taking account of the 52 week period of OML and AML and of the circumstances of the particular case. As a matter of practice rather than of law, it seems likely that it will be an unusual case in which the period is other than the 52 week period.
36. While [45] of Saint Prix clearly places weight on Article 16(3) in concluding that a Saint Prix right exists, I do not accept Mr Berry’s submission that that provision is relevant in determining the length of the “reasonable period”. As has been seen, the terms of the CJEU’s judgment clearly allow for differing periods in different Member States, most of which will not be of 52 weeks (or 12 months) duration. However, he does not need this point in order to succeed.
37. Nor does he need the point in [32(d)] above based on the avoidance of discrimination between those on a fixed term contract which had been terminated and those on continuing employment contracts. The point was not greatly developed before me and I prefer to express no view upon it.
Does a woman have to return to work (or find another job) or will a return to jobseeking suffice?
38. It will be recalled that in Saint Prix [47] the Court said:
“Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child.”
39. As indicated at [25] above, the reference to “seeking work” at the beginning of a “reasonable period” includes at least those who comply with Article 7(3). The way in which the Court has expressed the proviso, if taken literally, suggests that there must have been a return to actual work (whether at the previous, or another, job) by the end of it. That would be a surprising construction and it is not one for which Ms Clement contends. Her submission is that the expression “returns to work or finds another job” extends to the situation where a person retained worker status under Article 7(3)(b) or (c) of the Directive at the start of the period and returned to work-seeking within the meaning of those provisions (Ms Clement goes on to add “as transposed by the Regulations”: I have dealt with that as a general point at [12] above.) The reason, she submits, correctly in my view, is that if a woman with rights under Article 7(3)(b) or (c) had to find a job within the reasonable period after childbirth rather than merely returning to qualifying work seeking, then she would have to do more as the result of leaving the labour market temporarily because of pregnancy and the aftermath of childbirth than if she had remained as a person with retained worker status under Article 7(3)(b) or (c).
40. As to the position of someone who enters the reasonable period as a worker because of having a job, it is possible that that job may, for lawful or unlawful reasons, come to an end while a woman is in the reasonable period (as in CS’s case).. I can see no principled reason why she, too, should not be able to demonstrate her return to the employment market by complying with the conditions of Article 7(3)(b) or (c); otherwise, as with the woman with retained worker status, more would be being asked of her because of her having temporarily left the employment market because of pregnancy and the immediate aftermath of childbirth.
41. In my view the CJEU’s reference in [41] of Saint Prix to a condition that a woman “returns to work or finds another job” can be explained, as Mr Berry suggests, by the fact that it was known that Ms Saint Prix had done just that. It is also in my view intrinsically unlikely that in a decision reasserting the primacy of Article 45 TFEU as the source of rights, the Court was intending to cut down on the rights already conferred pursuant to that Article.
42. Mr Berry and Mr Rutledge point out that many of the women needing to rely on Saint Prix rights will have insecure working arrangements, for instance as agency workers or on temporary, flexible or zero-hour contracts and may well not have their job to return to at the end of the Saint-Prix period. Their argument is in essence for the conclusion I have reached in the preceding paragraphs.”
Danmark
(Social policy) [2001] All ER (EC) 941
[2001] EUECJ C-109/00, [2001] IRLR 853, [2002] 1 CMLR 5
“The first question
By its first question the Højesteret asks essentially whether Article 5(1) of Directive 76/207 and Article 10 of Directive 92/85 must be interpreted as precluding a worker from being dismissed on the ground of pregnancy where she was recruited for a fixed period, she failed to inform the employer that she was pregnant even though she was aware of this when the contract of employment was concluded, and because of her pregnancy she was unable to work during a substantial part of the term of that contract.
………….As the Court has held on several occasions, the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex, contrary to Article 5(1) of Directive 76/207 (Case C-179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I-3979, paragraph 13; Case C-421/92 Habermann-Beltermann [1994] ECR I-1657, paragraph 15; and Case C-32/93 Webb [1994] ECR I-3567, paragraph 19).
It was also in view of the risk that a possible dismissal may pose for the physical and mental state of pregnant workers, workers who have recently given birth or those who are breastfeeding, including the particularly serious risk that they may be encouraged to have abortions, that the Community legislature, in Article 10 of Directive 92/85, laid down special protection for those workers by prohibiting dismissal during the period from the start of pregnancy to the end of maternity leave.
During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition of dismissing pregnant workers, save in exceptional cases not connected with their condition where the employer justifies the dismissal in writing.
The Court has held, moreover, that a refusal to employ a woman on account of her pregnancy 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 (Case C-177/88 Dekker [1990] ECR I-3941, paragraph 12), and that the same conclusion must be drawn as regards the financial loss caused by the fact that the woman appointed cannot be employed in the post concerned for the duration of her pregnancy (Case C-207/98 Mahlburg [2000] ECR I-549, paragraph 29).
In paragraph 26 of Webb, the Court also held that, while the availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during the period corresponding to maternity leave is essential to the proper functioning of the undertaking in which she is employed. A contrary interpretation would render ineffective the provisions of Directive 76/207.
Such an interpretation cannot be altered by the fact that the contract of employment was concluded for a fixed term.
Since the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of the economic loss incurred by the employer as a result of her absence because of pregnancy, whether the contract of employment was concluded for a fixed or an indefinite period has no bearing on the discriminatory character of the dismissal. In either case the employee’s inability to perform her contract of employment is due to pregnancy.
Moreover, the duration of an employment relationship is a particularly uncertain element of the relationship in that, even if the worker is recruited under a fixed-term contract, such a relationship may be for a longer or shorter period, and is moreover liable to be renewed or extended.
Finally, Directives 76/207 and 92/85 do not make any distinction, as regards the scope of the principle of equal treatment for men and women, according to the duration of the employment relationship in question. Had the Community legislature wished to exclude fixed-term contracts, which represent a substantial proportion of employment relationships, from the scope of those directives, it would have done so expressly.
Consequently, the answer to the first question must be that Article 5(1) of Directive 76/207 and Article 10 of Directive 92/85 are to be interpreted as precluding a worker from being dismissed on the ground of pregnancy
– where she was recruited for a fixed period,
– she failed to inform the employer that she was pregnant even though she was aware of this when the contract of employment was concluded,
– and because of her pregnancy she was unable to work during a substantial part of the term of that contract.
Hofmann v Barmer Ersatzkasse Case
184/83 1984 ECR 3047
Summary
1 . DIRECTIVE 76/207 IS NOT DESIGNED TO SETTLE QUESTIONS CONCERNING THE ORGANIZATION OF THE FAMILY , OR TO ALTER THE DIVISION OF RESPONSABILITY BETWEEN PARENTS .
2.BY RESERVING TO MEMBER STATES THE RIGHT TO RETAIN OR INTRODUCE PROVISIONS WHICH ARE INTENDED TO PROTECT WOMEN IN CONNECTION WITH ‘ ‘ PREGNANCY AND MATERNITY ‘ ‘ , DIRECTIVE 76/207 RECOGNIZES THE LEGITIMACY , IN TERMS OF THE PRINCIPLE OF EQUAL TREATMENT , OF PROTECTING A WOMAN ‘ S NEEDS IN TWO RESPECTS . FIRST , IT IS LEGITIMATE TO ENSURE THE PROTECTION OF A WOMAN ‘ S BIOLOGICAL CONDITION DURING PREGNANCY AND THEREAFTER UNTIL SUCH TIME AS HER PHYSIOLOGICAL AND MENTAL FUNCTIONS HAVE RETURNED TO NORMAL AFTER CHILDBIRTH ; SECONDLY , IT IS LEGITIMATE TO PROTECT THE SPECIAL RELATIONSHIP BETWEEN A WOMAN AND HER CHILD OVER THE PERIOD WHICH FOLLOWS PREGNANCY AND CHILDBIRTH , BY PREVENTING THAT RELATIONSHIP FROM BEING DISTURBED BY THE MULTIPLE BURDENS WHICH WOULD RESULT FROM THE SIMULTANEOUS PURSUIT OF EMPLOYMENT .
3.MATERNITY LEAVE GRANTED TO A WOMAN ON EXPIRY OF THE STATUTORY PROTECTIVE PERIOD FALLS WITHIN THE SCOPE OF ARTICLE 2 ( 3 ) OF DIRECTIVE 76/207 , INASMUCH AS IT SEEKS TO PROTECT A WOMAN IN CONNECTION WITH THE EFFECTS OF PREGNANCY AND MOTHERHOOD . THAT BEING SO , SUCH LEAVE MAY LEGITIMATELY BE RESERVED TO THE MOTHER TO THE EXCLUSION OF ANY OTHER PERSON , IN VIEW OF THE FACT THAT IT IS ONLY THE MOTHER WHO MAY FIND HERSELF SUBJECT TO UNDESIRABLE PRESSURES TO RETURN TO WORK PREMATURELY .
4.DIRECTIVE 76/207 LEAVES MEMBER STATES WITH A DISCRETION AS TO THE SOCIAL MEASURES WHICH THEY ADOPT IN ORDER TO GUARANTEE , WITHIN THE FRAMEWORK LAID DOWN BY THE DIRECTIVE , THE PROTECTION OF WOMEN IN CONNECTION WITH PREGNANCY AND MATERNITY AND TO OFFSET THE DISADVANTAGES WHICH WOMEN , BY COMPARISON WITH MEN , SUFFER WITH REGARD TO THE RETENTION OF EMPLOYMENT . SUCH MEASURES ARE CLOSELY LINKED TO THE GENERAL SYSTEM OF SOCIAL PROTECTION IN THE VARIOUS MEMBER STATES . THE MEMBER STATES THEREFORE ENJOY A REASONABLE MARGIN OF DISCRETION AS REGARDS BOTH THE NATURE OF THE PROTECTIVE MEASURES AND THE DETAILED ARRANGEMENTS FOR THEIR IMPLEMENTATION .
5.ARTICLES 1 , 2 AND 5 ( 1 ) OF DIRECTIVE 76/207 MUST BE INTERPRETED AS MEANING THAT A MEMBER STATE MAY , AFTER THE PROTECTIVE PERIOD HAS EXPIRED , GRANT TO MOTHERS A PERIOD OF MATERNITY LEAVE WHICH THE STATE ENCOURAGES THEM TO TAKE BY THE PAYMENT OF AN ALLOWANCE . THE DIRECTIVE DOES NOT IMPOSE ON MEMBER STATES A REQUIREMENT THAT THEY SHALL , AS AN ALTERNATIVE , ALLOW SUCH LEAVE TO BE GRANTED TO FATHERS , EVEN WHERE THE PARENTS SO DECIDE .
……24 IT IS APPARENT FROM THE ABOVE ANALYSIS THAT THE DIRECTIVE IS NOT DESIGNED TO SETTLE QUESTIONS CONCERNED WITH THE ORGANIZATION OF THE FAMILY , OR TO ALTER THE DIVISION OF RESPONSIBILITY BETWEEN PARENTS .
25 IT SHOULD FURTHER BE ADDED , WITH PARTICULAR REFERENCE TO PARAGRAPH ( 3 ), THAT , BY RESERVING TO MEMBER STATES THE RIGHT TO RETAIN , OR INTRODUCE PROVISIONS WHICH ARE INTENDED TO PROTECT WOMEN IN CONNECTION WITH ‘ ‘ PREGNANCY AND MATERNITY ‘ ‘ , THE DIRECTIVE RECOGNIZES THE LEGITIMACY , IN TERMS OF THE PRINCIPLE OF EQUAL TREATMENT , OF PROTECTING A WOMAN ‘ S NEEDS IN TWO RESPECTS . FIRST , IT IS LEGITIMATE TO ENSURE THE PROTECTION OF A WOMAN ‘ S BIOLOGICAL CONDITION DURING PREGNANCY AND THEREAFTER UNTIL SUCH TIME AS HER PHYSIOLOGICAL AND MENTAL FUNCTIONS HAVE RETURNED TO NORMAL AFTER CHILDBIRTH ; SECONDLY , IT IS LEGITIMATE TO PROTECT THE SPECIAL RELATIONSHIP BETWEEN A WOMAN AND HER CHILD OVER THE PERIOD WHICH FOLLOWS PREGNANCY AND CHILDBIRTH , BY PREVENTING THAT RELATIONSHIP FROM BEING DISTURBED BY THE MULTIPLE BURDENS WHICH WOULD RESULT FROM THE SIMULTANEOUS PURSUIT OF EMPLOYMENT .
26 IN PRINCIPLE , THEREFORE , A MEASURE SUCH AS MATERNITY LEAVE GRANTED TO A WOMAN ON EXPIRY OF THE STATUTORY PROTECTIVE PERIOD FALLS WITHIN THE SCOPE OF ARTICLE 2 ( 3 ) OF DIRECTIVE 76/207 , INASMUCH AS IT SEEKS TO PROTECT A WOMAN IN CONNECTION WITH THE EFFECTS OF PREGNANCY AND MOTHERHOOD . THAT BEING SO , SUCH LEAVE MAY LEGITIMATELY BE RESERVED TO THE MOTHER TO THE EXCLUSION OF ANY OTHER PERSON , IN VIEW OF THE FACT THAT IT IS ONLY THE MOTHER WHO MAY FIND HERSELF SUBJECT TO UNDESIRABLE PRESSURES TO RETURN TO WORK PREMATURELY .
27 FURTHERMORE , IT SHOULD BE POINTED OUT THAT THE DIRECTIVE LEAVES MEMBER STATES WITH A DISCRETION AS TO THE SOCIAL MEASURES WHICH THEY ADOPT IN – ORDER TO GUARANTEE , WITHIN THE FRAMEWORK LAID DOWN BY THE DIRECTIVE , THE PROTECTION OF WOMEN IN CONNECTION WITH PREGNANCY AND MATERNITY AND TO OFFSET THE DISADVANTAGES WHICH WOMEN , BY COMPARISON WITH MEN , SUFFER WITH REGARD TO THE RETENTION OF EMPLOYMENT . SUCH MEASURES ARE , AS THE GOVERNMENT OF THE UNITED KINGDOM HAS RIGHTLY OBSERVED , CLOSELY LINKED TO THE GENERAL SYSTEM OF SOCIAL PROTECTION IN THE VARIOUS MEMBER STATES . IT MUST THEREFORE BE CONCLUDED THAT THE MEMBER STATES ENJOY A REASONABLE MARGIN OF DISCRETION AS REGARDS BOTH THE NATURE OF THE PROTECTIVE MEASURES AND THE DETAILED ARRANGEMENTS FOR THEIR IMPLEMENTATION .
28 IT FOLLOWS FROM THE FOREGOING THAT THE REPLY TO BE GIVEN TO THE QUESTION SUBMITTED BY THE LANDESSOZIALGERICHT HAMBURG IS THAT ARTICLES 1 , 2 AND 5 ( 1 ) OF COUNCIL DIRECTIVE 76/207 MUST BE INTERPRETED AS MEANING THAT A MEMBER STATE MAY , AFTER THE STATUTORY PROTECTIVE PERIOD HAS EXPIRED , GRANT TO MOTHERS A PERIOD OF MATERNITY LEAVE WHICH THE STATE ENCOURAGES THEM TO TAKE BY THE PAYMENT OF AN ALLOWANCE . THE DIRECTIVE DOES NOT IMPOSE ON MEMBER STATES A REQUIREMENT THAT THEY SHALL , AS AN ALTERNATIVE , ALLOW SUCH LEAVE TO BE GRANTED TO FATHERS , EVEN WHERE THE PARENTS SO DECIDE .
29 SINCE THE REPLY TO THE FIRST QUESTION SUBMITTED BY THE LANDESSOZIALGERICHT IS IN THE NEGATIVE , THE SECOND QUESTION , CONCERNING THE EFFECT OF DIRECTIVE 76/207 IN THE EVENT OF ITS PROVISIONS BEING DISREGARDED BY A MEMBER STATE , IS OTIOSE .
Ulrich Hofmann v Barmer Ersatzkasse.
[1986] 1 CMLR 242, [1985] ICR 731, [1984] ECR 3047, [1984] EUECJ R-184/83
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(Social policy – Male and female workers – Article 141 EC – Equal pay – Directive 76/207/EEC – Equal treatment – Maternity leave – Passage to a higher salary grade – Failure to take account of the whole of a period of maternity leave taken under the legislation of the former German Democratic Republic)
Land Brandenburg v Ursula Sass Case C-284/02
“This reference for a preliminary ruling concerns the interpretation of Article 141 EC and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40).
I – Legal background
A – The Community legislation
Article 141 EC lays down the principle of equal pay for male and female workers for equal work or work of equal value.
Directive 76/207 is intended to ensure the elimination of any discrimination on grounds of sex, both as regards working conditions and as regards access to employment at all levels of the professional hierarchy, without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.
Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (OJ 1992 L 348, p. 1) lays down certain minimum requirements for the protection of such workers.
;;;;;;;;;;;;;;;;;;;;
It must be observed that, having regard to the principle of equal treatment, that directive recognises the legitimacy of both the protection of a woman-s biological condition during and after pregnancy and the protection of the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see Case 184/83 Hofmann [1984] ECR 3047, paragraph 25, and Case C-342/01 Merino Gómez [2004] ECR I-0000, paragraph 32).
To that end, Article 2(3) of the directive allows national provisions which guarantee women specific rights on account of pregnancy and maternity. Maternity leave is covered by that article (see Case C-136/95 Thibault [1998] ECR I-2011, paragraph 24).
Moreover, the exercise of rights granted to a woman under that Article cannot be made subject to unfavourable treatment regarding conditions to be fulfilled in order for her to attain a higher grade in the professional hierarchy. From that point of view, Directive 76/207 is intended to bring about equality in substance rather than in form (see, to that effect, Merino Gómez, paragraph 37, and Thibault, paragraph 26).
It follows from the foregoing that a female worker is protected in her employment relationship against any unfavourable treatment on the ground that she is or has been on maternity leave.
A woman who is treated unfavourably because of absence on maternity leave suffers discrimination on the ground of her pregnancy and of that leave. Such conduct constitutes discrimination on the grounds of sex within the meaning of Directive 76/207 (Case C-342/93 Gillespie and Others [1996] ECR I-‘475, paragraph 22; Thibault, paragraphs 29 and 32; and Case C-147/02 Alabaster, [2004] ECR I-0000, paragraph 47).
Against that background, it must be held that Mrs Sass is in a worse position than a male colleague who started work in the former GDR on the same day as she did because, having taken maternity leave, she will not attain the higher salary grade until 12 weeks after he does.
However, the referring court takes as the premise for its reasoning that the disadvantage suffered by Mrs Sass is not based on sex but on the fact that her employment relationship was in abeyance for the 12 weeks in question.
In that regard, it must be pointed out that a woman is still linked to her employer by a contract of employment during maternity leave (see Gillespie and Others, paragraph 22; Thibault, paragraph 29, and Alabaster, paragraph 47). The way in which a female worker is paid during such leave does not affect that conclusion.
The Commission, however, relies on Directive 92/85, in cases where the issue is discrimination on the ground of sex, in order to consider the possible effects on rights deriving from a contract of employment of a period of maternity leave longer than the minimum period laid down by that directive. In that connection it cites Case C-411/96 Boyle and Others [1998] ECR I-‘6401, paragraph 79, and appears to draw the conclusion that, as the rights of a female worker are liable to be affected by a period of maternity leave longer than the minimum laid down by Article 8 of the directive, the 20 weeks which Mrs Sass freely decided to take under Paragraph 244 of the AGB-DDR were simply a benefit available to her.
That argument cannot be upheld.
First, it must be borne in mind that Directive 92/85 did not have to be implemented by the Member States in their national law until 19 October 1994 at the latest, in other words by a date after the time of the events in the main proceedings.
Second, even if it were permissible to base an argument on that directive, it must be observed that, under its Article 11, it provides that, in order to guarantee the protection of pregnant workers, workers who have recently given birth or are breastfeeding, the rights connected with the employment contract must be ensured -in the case referred to in Article 8-. Article 8 provides for -a continuous period of maternity leave of a least 14 weeks-.
Therefore, the fact that a piece of legislation grants women maternity leave of more than 14 weeks does not preclude that leave from being considered to be maternity leave as referred to in Article 8 of Directive 92/85 and, therefore, a period during which the rights connected with the employment contract must, under Article 11, be ensured.
Moreover, the question referred in this case cannot be decided on the basis of whether or not such leave is mandatory. In that regard it must be pointed out that, according to Directive 92/85, the prohibition on working relates only to a period of at least 2 weeks out of a maternity leave of at least 14 weeks.
Accordingly, the fact that Mrs Sass chose to take the whole 20 weeks leave provided for by the AGB-DDR, while the 8 weeks leave provided for by the MuSchG entails a prohibition on working, does not preclude her entire maternity leave from being considered to be statutory leave intended to protect a women who has given birth.
As regards the judgment in Boyle and Others it must be held that, contrary to the contentions of the Commission, that judgment does not in any way prejudge the answer to the question referred in the present case since Boyle concerned additional leave granted by an employer rather than statutory leave.
It follows from all the foregoing that, although the national legislation provides for maternity leave to protect a womans biological condition and the special relationship between a woman and her child over the period which follows pregnancy and childbirth, Community law requires that taking such statutory protective leave should interrupt neither the employment relationship of the woman concerned nor the application of the rights derived from it and cannot lead to discrimination against that woman.”
Virginie Pontin v T-Comalux SA
Case C-63/08
“1. Articles 10 and 12 of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding must be interpreted as not precluding legislation of a Member State which provides a specific remedy concerning the prohibition of dismissal of pregnant workers or workers who have recently given birth or are breastfeeding laid down in Article 10, exercised according to procedural rules specific to that remedy, provided however that those rules are no less favourable than those governing similar domestic actions (principle of equivalence) and are not framed in such a way as to render practically impossible the exercise of rights conferred by Community law (principle of effectiveness). A fifteen-day limitation period applicable to an action for a declaration of nullity and for reinstatement does not appear to meet that condition, but that is a matter for the referring court to determine.
(see paras 62, 69, operative part 1)
2. Article 2, in conjunction with Article 3, of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, as amended by Directive 2002/73, must be interpreted as precluding legislation of a Member State, specific to the protection provided for in Article 10 of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding in the event of their dismissal, which denies a pregnant employee who has been dismissed during her pregnancy the option to bring an action for damages whereas such an action is available to any other employee who has been dismissed, where such a limitation on remedies constitutes less favourable treatment of a woman related to pregnancy. That would be the case, in particular, if the procedural rules relating to the only action available in the case of dismissal of such workers did not comply with the principle of effective judicial protection of an individual’s rights under Community law, a matter which it is for the referring court to determine.
(see para. 76, operative part 2)
…….
30 It is apparent from the case-file lodged at the Court that, by its three questions, the referring court asks in essence whether Directives 92/85 and/or 76/207 preclude national legislation such as Article L. 337-1 of the Labour Code, which, specifically in connection with the prohibition of dismissal of pregnant workers and workers who have recently given birth or are breastfeeding laid down in Article 10 of Directive 92/85, restricts the remedies available to them to an action for nullity and reinstatement, subject to time-limits such as those applying in the main proceedings, and excludes in particular an action for damages.
31 In that context, the first two questions concern the preliminary point of whether procedural rules such as those contained in Article L. 337-1 comply with the requirements of Articles 10 and 12 of Directive 92/85 and, in particular, enable all workers who consider themselves wronged by failure to comply with the obligations arising from Article 10 to pursue their claims by judicial process. The answer to those two questions will affect the answer to the third question, which is in essence whether restriction of the legal remedies available in the event of dismissal during pregnancy solely to an action for nullity and reinstatement constitutes discrimination within the meaning of Directive 76/207.
…..
Answer of the Court
First two questions
40 In accordance with Article 12 of Directive 92/85, Member States are also required to introduce into their national legal systems such measures as are necessary to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from Article 10 of the directive, to pursue their claims by judicial process. Article 10(3) of that directive specifically states that Member States must take the necessary measures to protect pregnant workers or those who have recently given birth or are breastfeeding from the consequences of dismissal which is unlawful by virtue of paragraph 1 of that article (see Case C-460/06 Paquay [2007] ECR I-8511, paragraph 47).
41 Those provisions, and in particular Article 12 of Directive 92/85, constitute a specific expression, in the context of that directive, of the principle of effective judicial protection of an individual’s rights under Community law.
48 The Court has thus recognised that it is compatible with Community law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty, since such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by Community law (see Case C-255/00 Grundig Italiana [2002] ECR I-8003, paragraph 34, and Case C-2/06 Kempter [2008] ECR I-411, paragraph 58, and case-law cited). As regards limitation periods, the Court has also held that, in respect of national legislation which comes within the scope of Community law, it is for the Member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (see, to that effect, Case C-349/07 Sopropé [2008] ECR I-0000, paragraph 40).
49 Lastly, as is apparent from settled case-law, it is not for the Court to rule on the interpretation of national law, that being exclusively for the national court, which must, in the present case, determine whether the requirements of equivalence and effectiveness are met by the provisions of the relevant national legislation (see Angelidaki and Others, paragraph 163). However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see Case C-53/04 Marrosuand Sardino [2006] ECR I-7213, paragraph 54; Case C-180/04 Vassallo [2006] ECR I-7251, paragraph 39; and the order of 12 June 2008 in Case C-364/07 Vassilakis and Others, paragraph 143).
53 However, since Member States are responsible for ensuring that rights which individuals derive from Community law are effectively protected in each case (see, in particular, Impact, paragraph 45, and case-law cited), the rules governing such proceedings must comply with the requirements laid down in the case-law cited in paragraphs 39 to 48 above.
68 As follows from paragraphs 43 and 44 above, if that court were to find that the rules at issue in the main proceedings fail to comply with the principles of equivalence and/or effectiveness, those rules would not be considered to meet the requirement of effective judicial protection of an individual’s rights under Community law, and in particular those conferred by Articles 10 and 12 of Directive 92/85.
69 In the light of the foregoing, the answer to the first two questions must be that Articles 10 and 12 of Directive 92/85 must be interpreted as not precluding legislation of a Member State which provides a specific remedy concerning the prohibition of dismissal of pregnant workers or workers who have recently given birth or are breastfeeding laid down in that Article 10, exercised according to procedural rules specific to that remedy, provided however that those rules are no less favourable than those governing similar domestic actions (principle of equivalence) and are not framed in such a way as to render practically impossible the exercise of rights conferred by Community law (principle of effectiveness). A 15-day limitation period, such as that laid down in the fourth subparagraph of Article L. 337-1(1) of the Labour Code, does not appear to meet that condition, but that is a matter for the referring court to determine.
Third question
70 By its third question, the referring court asks in essence whether Article 2 of Directive 76/207 precludes legislation of a Member State, such as that introduced by Article L. 337-1(1) of the Labour Code, which denies pregnant workers and workers who have recently given birth or are breastfeeding, who are dismissed during their pregnancy, the option to bring an action for damages, whereas such an action is available to any other employee who has been dismissed.
71 In that regard, it should be noted that, under the third subparagraph of Article 2(7) of Directive 76/207, inserted in that directive by Article 1(2) of Directive 2002/73, any less favourable treatment of a woman related to pregnancy constitutes discrimination within the meaning of that directive.
72 Moreover, it has not been suggested in the context of the present reference for a preliminary ruling that an action for damages does not comply with the principle of effective judicial protection of an individual’s rights under Community law.
73 However, according to the referring court, the only remedy open to a pregnant woman dismissed during pregnancy is an action for nullity and reinstatement, to the exclusion of all other remedies under employment law, such as an action for damages.
74 Therefore, if it emerges, after verification by the referring court on the basis of the information provided in response to the first two questions, that an action for nullity and reinstatement does not comply with the principle of effectiveness, such an infringement of the requirement to provide effective judicial protection laid down in particular in Articles 12 of Directive 92/85 would constitute ‘[l]ess favourable treatment of a woman related to pregnancy’, within the meaning of the third subparagraph of Article 2(7) of Directive 76/207, and should therefore be regarded as discrimination within the meaning of Directive 76/207.
75 If the referring court were thus to find there had been such an infringement of the principle of equal treatment, within the meaning of Article 3(1) of Directive 76/207, it would have to interpret the domestic jurisdictional rules in such a way that, wherever possible, they contribute to the attainment of the objective of ensuring effective judicial protection of a pregnant woman’s rights under Community law (see, by analogy, Case 222/84 Johnston [1986] ECR 1651, paragraph 17; Case C-185/97 Coote [1998] ECR I-5199, paragraph 18; and Impact, paragraph 54).
76 In the light of the foregoing, the answer to the third question must be that Article 2, in conjunction with Article 3, of Directive 76/207 is to be interpreted as precluding legislation of a Member State, such as that introduced by Article L. 337-1(1) of the Labour Code, which is specific to the protection provided for in Article 10 of Directive 92/85 in the event of the dismissal of a pregnant worker or of a worker who has recently given birth or is breastfeeding, and which denies a pregnant employee who has been dismissed during her pregnancy the option to bring an action for damages whereas such an action is available to any other employee who has been dismissed, where such a limitation on remedies constitutes less favourable treatment of a woman related to pregnancy. That would be the case in particular if the procedural rules relating to the only action available in the case of dismissal of such workers do not comply with the principle of effective judicial protection of an individual’s rights under Community law, a matter which it is for the referring court to determine.
Lewen v Denda
[1999] EUECJ C-333/97 [1999] ECR I-7243, [1999] EUECJ C-333/97
“In those circumstances, the Arbeitsgericht Gelsenkirchen stayed proceedings pending a preliminary ruling from the Court on the following questions:
‘(1) Is a Christmas bonus pay within the meaning of Article 119 of the EC Treaty or payment within the meaning of Article 11(2)(b) of Directive 92/85/EEC for work performed in the year in which the bonus is awarded even where it is given by the employer mainly or exclusively as an incentive for future work and/or loyalty to the firm? Is it to be regarded as in the nature of pay or payment at least where the employer has not announced prior to the beginning of the year of the award that at Christmas in the following year he intends to relate it exclusively to the performance of future work and so to exclude from the payment employees whose relationships at the time of payment and thereafter are in abeyance?
(2) Is there a breach of Article 119 of the EC Treaty, Article 11(2) of Directive 92/85/EEC and Clause 2(6) of [the Annex to] Directive 96/34/EC (which is yet to be transposed) if an employer wholly excludes women who are on parenting leave (Erziehungslaub) at the time of payment of the Christmas bonus from receipt of the bonus and does not take into account work performed during the year in which the bonus is paid or periods for the protection of mothers (in which they were prohibited from working)?
(3) If Question 2 is to be answered in the affirmative:
Is there a breach of Article 119 of the EC Treaty, Article 11(2)(b) of Directive 92/85/EEC and Clause 2(6) of the [Annex to] Directive 96/34/EC if, when awarding a Christmas bonus to a women who is on parenting leave, an employer takes into account the following periods by way of pro rata reduction:
– periods of parenting leave;
– periods for the protection of mothers (in which they were prohibited from working)?
The first question
By its first question, the national court seeks essentially to ascertain whether a Christmas bonus of the kind at issue in the main proceedings falls within the concept of pay within the meaning of Article 119 of the Treaty or Article 11(2)(b) of Directive 92/85 even if the bonus is paid by the employer mainly or exclusively as an incentive for future work or loyalty to the undertaking or both.
According to the defendant in the main proceedings, the bonus, having been paid voluntarily as an exceptional allowance at Christmas, cannot be regarded as pay within the meaning of Article 119 of the Treaty.
It must be borne in mind that, according to settled case-law, the concept of pay within the meaning of the second paragraph of Article 119 of the Treaty includes all consideration paid to a worker in respect of his employment by his employer, whether immediate or future and whether paid under a contract of employment, by virtue of legislative provisions or on a voluntary basis (see Case 80/70 Defrenne [1971] ECR 445, paragraph 6, Case 12/81 Garland [1982] ECR 359, paragraph 10, and Case C-262/88 Barber [1990] ECR I-1889, paragraph 20).
For the purposes of Article 119, the reason for which an employer pays a benefit is of little importance provided that the benefit is granted in connection with employment.
It follows that a Christmas bonus of the kind at issue in the main proceedings, even if paid on a voluntary basis and even if paid mainly or exclusively as an incentive for future work or loyalty to the undertaking or both, constitutes pay within the meaning of Article 119 of the Treaty.
As regards the concept of payment within the meaning of Article 11(2)(b) of Directive 92/85, that provision is intended to ensure that, during maternity leave, female workers receive an income at least equal to that prescribed by Article 11(3) of that directive, irrespective of whether it is paid in the form of an allowance, pay or a combination of the two (Case C-411/96 Boyle and Others [1998] ECR I-6401, paragraphs 31 to 33).
Not being intended to ensure such a level of income during a worker’s maternity leave, the bonus at issue in the main proceedings cannot be regarded as falling within the concept of payment within the meaning of Article 11(2)(b) of Directive 92/85.
Accordingly, the answer to the first question must be that a Christmas bonus of the kind at issue in the main proceedings constitutes pay within the meaning of Article 119 of the Treaty, even if it is paid voluntarily by the employer and even if it is paid mainly or exclusively as an incentive for future work or loyalty to the undertaking or both. It does not, however, fall within the concept of payment within the meaning of Article 11(2)(b) of Directive 92/85.
The second question
By its second question, the national court seeks essentially to ascertain whether Article 119 of the Treaty, Article 11(2) of Directive 92/85 and Clause 2(6) of the Annex to Council Directive 96/34/EC preclude an employer from excluding women entirely from the benefit of a bonus paid voluntarily as an exceptional allowance at Christmas if, at the time of payment of the bonus, they are on parenting leave, without taking account of the work done during the year in which the bonus is paid or of the periods for the protection of mothers (in which they were prohibited from working).
It must be borne in mind, first of all, that in view of its mandatory nature, the prohibition of discrimination between male and female workers not only applies to action on the part of public authorities, but also extends to all collective agreements designed to regulate employment relationships and to contracts between individuals (see, in particular, Case C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297, paragraph 11, and Case C-281/97 Krüger v Kreiskrankenhaus Ebersberg [1999] ECR I-0000, paragraph 20). That prohibition also applies to unilateral action by an employer vis-à-vis his employees.
Second, the finding that an advantage such as the Christmas bonus at issue in this case falls within the concept of pay as broadly defined in Article 119 of the Treaty does not necessarily imply that it must be regarded as retroactive pay for work performed in the course of the year in which the bonus is paid, as the national court appears to assume. That, however, is a question of fact which is a matter to be appraised by the national court in the light of its national law.
It is therefore for the national court to appraise, in order to classify the Christmas bonus under national law, the weight of the defendant’s argument that in paying the 1996 Christmas bonus his aim was to encourage those in ‘active employment on 1 December 1996 to work hard in the forthcoming months and thus to reward their future loyalty to their employer.
In order to give a helpful answer to the question submitted, it is therefore necessary, in view of the doubts as to the exact classification of the bonus under national law, to consider first the hypothesis that the voluntary payment of a bonus as an exceptional allowance by an employer at Christmas does not constitute retroactive pay for work performed and is subject only to the condition that the worker is in active employment when it is awarded.
……………According to settled case-law, indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, Boyle, cited above, paragraph 76).
In that connection, the first point to note is that, as the national court has indicated, women take parenting leave far more often than men, and that is also confirmed by the situation in the defendant’s undertaking.
Furthermore, according to settled case-law, discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (Boyle, cited above, paragraph 39).
A worker who exercises a statutory right to take parenting leave, which carries with it a parenting allowance paid by the State, is in a special situation, which cannot be assimilated to that of a man or woman at work since such leave involves suspension of the contract of employment and, therefore, of the respective obligations of the employer and the worker.
The refusal to pay a woman on parenting leave a bonus as an exceptional allowance given voluntarily by an employer at Christmas does not therefore constitute discrimination within the meaning of Article 119 of the Treaty where the award of that allowance is subject only to the condition that the worker is in active employment when it is awarded.
The position would be different if the national court were to classify the bonus at issue under national law as retroactive pay for work performed in the course of the year in which the bonus is awarded.
In those circumstances, an employer’s refusal to award a bonus, even one reduced proportionally, to workers on parenting leave who worked during the year in which the bonus was granted, on the sole ground that their contract of employment is in suspense when the bonus is granted, places them at a disadvantage as comparedwith those whose contract is not in suspense at the time of the award and who in fact receive the bonus by way of pay for work performed in the course of that year. Such a refusal therefore constitutes discrimination within the meaning of Article 119 of the Treaty since female workers are likely, as noted in paragraph 35 of this judgment, to be on parenting leave when the bonus is awarded far more often than male workers.
As to whether periods for the protection of mothers (in which they are prohibited from working) must be taken into account, it must be held that they are to be assimilated to periods worked.
Indeed, to exclude periods for the protection of mothers from the periods worked for the purpose of awarding a bonus retroactively as pay for work performed would discriminate against a female worker simply as a worker since, had she not been pregnant, those periods would have had to be counted as periods worked.
The answer to the second question must therefore be that Article 119 of the Treaty precludes an employer from excluding female workers on parenting leave entirely from the benefit of a bonus paid voluntarily as an exceptional allowance at Christmas without taking account of the work done in the year in which the bonus is paid or of the periods for the protection of mothers (in which they were prohibited from working) where that bonus is awarded retroactively as pay for work performed in the course of that year.
However, neither Article 119 of the Treaty nor Article 11(2) of Directive 92/85 nor Clause 2(6) of the Annex to Directive 96/34 precludes a refusal to pay such a bonus to a woman on parenting leave where the award of that allowance is subject to the sole condition that the worker must be in active employment when it is awarded.
The third question
By its third question, the national court seeks essentially to ascertain whether Article 119 of the Treaty, Article 11(2)(b) of Directive 92/85 and Clause 2(6) of the Annex to Directive 96/34 preclude an employer, when granting a Christmas bonus to a female worker who is on parenting leave, from taking the following periods into account so as to reduce the benefit pro rata:
– periods of parenting leave;
– periods for the protection of mothers (in which they were prohibited from working).
First, as pointed out in paragraphs 23 and 32 of this judgment, the payment, during a worker’s parenting leave, of a bonus as an allowance awarded voluntarily at Christmas does not fall within the scope of either Article 11(2)(b) of Directive 92/85 or Clause 2(6) of the Annex to Directive 96/34.
Second, it is clear from the answer given to the second question that the fact that an employer, when a Christmas bonus of the kind at issue in the main proceedings is granted, does not take account of work performed in the course of the year in which the bonus is awarded or of periods for the protection of mothers (in which they were prohibited from working) constitutes discrimination within the meaning of Article 119 of the Treaty.
It follows that Article 119 of the Treaty precludes an employer when granting a Christmas bonus from taking periods for the protection of mothers into account, so as to reduce the benefit pro rata.
On the other hand, an employer cannot be prevented from taking periods of parenting leave into account, so as to reduce the benefit pro rata, since, as pointed out in paragraph 37 of this judgment, the situation of workers on parenting leave cannot be assimilated to that of a man or a woman at work.
The answer to the third question must therefore be that Article 119 of the Treaty, Article 11(2)(b) of Directive 92/85 and Clause 2(6) of the Annex to Directive 96/34 do not preclude an employer, when granting a Christmas bonus to a female worker who is on parenting leave, from taking periods of parenting leave into account, so as to reduce the benefit pro rata.
However, Article 119 of the Treaty precludes an employer, when granting a Christmas bonus, from taking periods for the protection of mothers (in which they were prohibited from working) into account, so as to reduce the benefit pro rata.
Sarkatzis Herrero
[2006] 2 CMLR 30, [2006] IRLR 296
“Carmen Sarkatzis Herrero
23 It should be noted at the outset that, as the questions raised refer generally to provisions of Community law on maternity leave and equal treatment for men and women, it is necessary to identify the relevant Community rules in order to be able to answer those questions.
24 First of all, the national court mentions Directive 96/34 on parental leave in the grounds of its decision.
25 Clearly, however, at the time of her appointment as an official, the applicant in the main proceedings was on maternity leave and not on parental leave. It follows that Directive 96/34 is not relevant to an examination of the questions referred.
26 Secondly, the position of the applicant in the main proceedings should be examined in the light of Directive 92/85 if the unfavourable treatment which Ms Sarkatzis Herrero describes infringes the rights protected by that directive.
31 It thus appears that there is no legal continuity between Ms Sarkatzis Herrero’s successive positions and she must thus be regarded as having taken up a new job in becoming an official and not as having returned to her previous job.
32 It follows that Directive 92/85 is also not of relevance in answering the questions referred. Therefore, there is no need to answer the second question referred for a preliminary ruling.
33 By its first and third questions, which it is appropriate to examine together, the national court is essentially asking whether Community law precludes a national law which provides that, for the purpose of calculating the seniority of an official, only the date on which the person concerned took up the post is taken into consideration, and there is no exception for women who are on maternity leave on the date when they are called upon to take up the post to which they have been appointed.
34 Those questions must be examined in the light of Articles 2(1) and (3) and 3 of Directive 76/207, in the version which applies to the facts of this case, in order to establish whether, when a female official is on maternity leave at the time of her appointment, deferring the start of her career to the date on which she actually took up her post constitutes discrimination on grounds of sex.
35 First, it must be noted that the Court has held that Directive 76/207 applies to employment in the public service. That directive is of general application, a factor inherent in the very nature of the principle which it lays down (see Case 248/83 Commission v Germany [1985] ECR 1459, paragraph 16).
36 As the Advocate General observed in point 34 of her Opinion, Article 2(1) of Directive 76/207 prohibits any discrimination whatsoever on grounds of sex and Article 3 et seq. of the same directive define the areas in which there is to be no discrimination. Thus, direct and indirect discrimination are prohibited as regards conditions for access to employment, including selection criteria and recruitment conditions, access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining and also as regards work experience, conditions of employment, working conditions and participation in an organisation which represents workers or others.
37 In the exercise of the rights conferred under Article 2(3) of Directive 76/207, women cannot be the subject of unfavourable treatment regarding their access to employment and working conditions, since the aim of the directive, in that respect, is to ensure substantive, not formal equality (see, to that effect, Case C-136/95 Thibault [1998] ECR I-2011, paragraph 26).
38 Thus the application of provisions concerning the protection of pregnant women cannot result in unfavourable treatment regarding their access to employment, so that it is not permissible for an employer to refuse to take on a pregnant woman on the ground that a prohibition on employment arising on account of the pregnancy would prevent her being employed from the outset and for the duration of the pregnancy in the post of unlimited duration to be filled (Case C-207/98 Mahlburg [2000] ECR I-549, paragraph 27).
39 Lastly, as regards the taking into consideration of a period of maternity leave in respect of attaining a higher grade in the professional hierarchy, the Court has held that a female worker is protected in her employment relationship against any unfavourable treatment on the ground that she is or has been on maternity leave and that a woman who is treated unfavourably because of absence on maternity leave suffers discrimination on the ground of her pregnancy and of that leave (see Case C-284/02 Sass [2004] ECR I-11143, paragraphs 35 and 36).
40 However, as the United Kingdom Government rightly pointed out in its observations at the hearing, the facts which gave rise to the judgment in Sass are clearly different from those of the case in the main proceedings in that, in Mrs Sass” case, the maternity leave had coincided with career advancement as the case concerned a change in salary grade. By contrast, in the case in the main proceedings, Ms Sarkatzis Herrero was given a new job in the course of maternity leave, and the date on which she took up her post was deferred to the end of that leave.
41 However, as observed by the Advocate General in point 39 of her Opinion, since the aim of Directive 76/207 is substantive, not formal equality, Articles 2(1) and (3) and 3 of that directive must be interpreted as precluding any unfavourable treatment of a female worker on account of maternity leave or in connection with such leave, which aims to protect pregnant women, and that is so without it being necessary to have regard to whether such treatment affects an existing employment relationship or a new employment relationship.
45 On the basis of the premisses set out in the order for reference, the deferment of the start of Ms Sarkatzis Herrero’s career as an official following her maternity leave constitutes unfavourable treatment for the purposes of Directive 76/207.
46 The fact that other people, in particular men, may, on other grounds, be treated in the same way as Ms Sarkatzis Herrero has no bearing on an assessment of her position since the deferment of the date on which her career is deemed to have started stemmed exclusively from the maternity leave to which she was entitled.
47 Having regard to the foregoing considerations, the answer to the first and third questions must be that Directive 76/207 precludes a national law which does not afford a woman who is on maternity leave the same rights as other successful applicants from the same recruitment competition as regards conditions for access to the career of an official by deferring the start of her career to the end of that leave, without taking account of the duration of the leave, for the purpose of calculating her seniority of service.
Thibault
[1998] All ER (EC) 385, [1998] 2 CMLR 516, [1998] IRLR 399
“The right of any employee to have their performance assessed each year and, consequently, to qualify for promotion, forms an integral part of the conditions of their contract of employment within the meaning of Article 5(1) of the Directive.
It is therefore in the light of Article 5(1) of the Directive, in conjunction with Article 2(3), that rules such as those at issue in this case must be examined to determine whether they guarantee men and women the same conditions without discrimination on grounds of sex.
The principle of non-discrimination requires that a woman who continues to be bound to her employer by her contract of employment during maternity leave should not be deprived of the benefit of working conditions which apply to both men and women and are the result of that employment relationship. In circumstances such as those of this case, to deny a female employee the right to have her performance assessed annually would discriminate against her merely in her capacity as a worker because, if she had not been pregnant and had not taken the maternity leave to which she was entitled, she would have been assessed for the year in question and could therefore have qualified for promotion.
It is true, as the United Kingdom Government was right to point out, that the Court has recognised that the Member States have a discretion as to the social measures they adopt in order to guarantee, within the framework laid down by the directive, protection of women in connection with pregnancy and maternity and as to the nature of the protection measures and the detailed arrangements for their implementation (see inter alia Hofmann, cited above, paragraph 27).
Nevertheless, such discretion, which must be exercised within the bounds of the Directive, cannot serve as a basis for unfavourable treatment of a woman regarding her working conditions.
It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance and, therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directive.
The answer to the question must therefore be that Articles 2(3) and 5(1) of the Directive preclude national rules which deprive a woman of the right to an assessment of her performance and, consequently, to the possibility of qualifying
for promotion because she was absent from the undertaking on account of maternity leave.
Merino Gomez
[2004] 2 CMLR 3, [2004] IRLR 407, [2005] ICR 1040, [
“The first question
Under Article 7(1) of Directive 93/104 Member States are to take the necessary measures to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
The entitlement of every worker to paid annual leave must be regarded as a particularly important principle of Community social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Directive 93/104 (BECTU, paragraph 43).
It is significant in that connection that the directive also embodies the rule that a worker must normally be entitled to actual rest, with a view to ensuring effective protection of his health and safety, since it is only where the employment relationship is terminated that Article 7(2) permits an allowance to be paid in lieu of paid annual leave (BECTU, paragraph 44).
Article 7(1) of Directive 93/104, by virtue of which the Member States are to take the necessary measures ‘in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice’, must be understood as meaning that the national implementing rules must in any event take account of the right to paid annual leave of at least four weeks.
The purpose of the entitlement to annual leave is different from that of the entitlement to maternity leave. Maternity leave is intended, first, to protect a woman’s biological condition during and after pregnancy and, second, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see Case 184/83 Hofmann [1984] ECR 3047, paragraph 25, Thibault, paragraph 25, and Boyle, paragraph 41).
Article 7(1) of Directive 93/104 must thus be interpreted as meaning that where the dates of a worker’s maternity leave coincide with those of the entire workforce’s annual leave, the requirements of the directive relating to paid annual leave cannot be regarded as met.
Furthermore, Article 11(2)(a) of Directive 92/85 provides that the rights connected with the employment contract of a worker, other than the rights referred to in Article 11(2)(b), must be ensured in a case of maternity leave.
Therefore, that must be the case so far as the entitlement to paid annual leave is concerned.
The determination of when paid annual leave is to be taken falls within the scope of Directive 76/207 (see, as regards the beginning of the period of maternity leave, Boyle, paragraph 47).
The directive is intended to bring about equality in substance rather than in form. The exercise of rights conferred on women as referred to in Article 2(3) of Directive 76/207 by provisions intended to protect women in relation to pregnancy and maternity cannot be made subject to unfavourable treatment regarding their working conditions (see Thibault, paragraph 26).
It follows that Article 5(1) of Directive 76/207 is to be interpreted as meaning that a worker must be able to take her annual leave during a period other than the period of her maternity leave.
It would be no different if the period of maternity leave coincided with the general period of annual leave fixed, by a collective agreement, for the entire workforce.
It should also be borne in mind that under Article 5(2)(b) of Directive 76/207, the Member States are to take the measures necessary to ensure that provisions contrary to the principle of equal treatment which are included in collective agreements are, or may be declared, null and void or may be amended.
In view of all the foregoing considerations, the answer to the first question must be that Article 7(1) of Directive 93/104, Article 11(2)(a) of Directive 92/85 and Article 5(1) of Directive 76/207 are to be interpreted as meaning that a worker must be able to take her annual leave during a period other than the period of her maternity leave, including in a case in which the period of maternity leave coincides with the general period of annual leave fixed, by a collective agreement, for the entire workforce.
Blundell v. St Andrew’s Catholic Primary School & Anor
[2007] IRLR 652, [2007] ICR 1451
“SUMMARY
A schoolteacher appealed from dismissal of her claims for sex (pregnancy) discrimination against school and her head teacher, in expressing anger at her being pregnant and its consequences for the school, and in allocating her to teach a different class on return from that she had taught before taking maternity leave. Her appeal was allowed where the Tribunal had applied the wrong test to determine “detriment” by failing to consider that loss of a chance of influencing the choice of class to be taught, through a discussion process open to all other non-pregnant employees, was indeed a detriment, but otherwise rejected.
MR JUSTICE LANGSTAFF
Although Ms Cunningham countered this last point by reminding us of Section 2 (2) of the Sex Discrimination Act 1975 – that it was not sex discrimination against a man to afford a woman special treatment in connection with pregnancy – this did not answer the point. A woman may not be disadvantaged because she is pregnant. If an employer affords her special treatment, no man in his employment has a right to complain. But it does not follow that she has a right to demand preferential treatment. Her right is to be treated no less favourably. In the context of a return to work this, viewed generally, means that she is entitled to be put back in the same, but no better a position that that she left to begin her period of maternity leave.
…..The 1975 Act provides by Section 1:-
“(1)…a person discriminates against a woman if (a) on the ground of her sex he treats her less favourably than he treats or would treat a man…” (This is “direct discrimination”).
Although Section 3A of the Act deals with discrimination on the ground of pregnancy or maternity leave, this was not in force at any time relevant to the present case, which therefore stands or falls by reference to well established law in relation to direct discrimination. That recognises that treatment complained of is not on the ground of sex if it is on some other ground, which is not gender specific. Although the “but for” test is often helpful in identifying whether treatment is on the ground of sex, and in circumstances such as those in James v Eastleigh Borough Council [1990] ICR 554, H.L. may be determinative, it is worth remembering that the focus of the enquiry is as to the reason for the treatment – the “reason why?” as it has been described in Shamoon (see paragraph 7 in the speech of Lord Nicholls of Birkenhead). The “but for” test has limitations in resolving disputes as to causation upon which rights to compensation depend. For example, the claim that “but for” my leaving home in the country to travel to London I would not have been knocked down by a car in Fleet Street may entitle the philosopher to muse that my doing so was the cause of my injuries, but such musing is completely unhelpful in determining the cause of the accident for the purposes of deciding whether I or the driver of the car should be financially responsible for the damage to man and to car involved in the accident. Thus for these purposes a court adopts what has been termed a robust, or pragmatic, approach to causation. Such an approach often leaves a broad margin within which a decision may fall. Courts and Tribunals alike are entitled to the respect of the appellate courts when they give an answer as to the reason why treatment has happened, unless the approach is obviously wrong or the answer clearly perverse.
The approach of the Tribunal must of course be particularly scrupulous where issues of discrimination are concerned. It is trite that discrimination is rarely admitted. Experience suggests that many of the phrases with which those anxious to hide discrimination sought to conceal their reasons for treating a woman as they did have become so familiar to Tribunals as falsely exculpatory phrases that nowadays knowing parties may avoid them in the search for some other apparently neutral label. The boundary between the robust and pragmatic on the one hand, and the philosophical on the other is imprecise. Tribunals must take care that the reason they accept, if apparently neutral as to gender, does not in fact hide gender favouritism. Hence the importance of decisions such as Anya, which emphasises the need for a Tribunal to make proper findings of primary fact if it is to draw inferences. The presence of discrimination is almost always a matter of inference rather than direct proof – even after the change in the burden of proof, it is still for a Claimant to establish matters from which the presence of discrimination could be inferred, before any burden passes to her employer. In drawing inferences, an uncritical belief in credibility is insufficient: as Sedley L.J. pointed out in Anya (paragraph 25) it may be very difficult to say whether a witness is telling the truth or not. Where there is a conflict of evidence, reference to the objective facts and documents, to the likely motives of a witness and the overall probabilities can give a court very great assistance in ascertaining the truth.
…..
A conclusion that the Tribunal was entitled to approach the evidence as it did interrelates with the causation finding in respect of the December conversation. The background and context to the conversation undoubtedly was the fact that the Appellant was shortly to be absent on maternity leave. But this does not disable an Employment Tribunal from asking whether in relation to matters occurring in such a conversation a hypothetical male comparator would have been treated in the same way (or, nowadays, whether the complainant herself, if not pregnant, would have been): such an enquiry might help to elucidate what was the reason for the treatment, which might be pregnancy, but which might not be. (See Madarassy v Nomura International Plc [2007] EWCA Civ 33, at paragraphs 118, 119.) If the relevant facts were those of an announcement of sudden impending disruption to a class, as the tribunal was entitled to regard them, the conclusion it reached would follow. We cannot see that the Tribunal here was wrong to come to such a conclusion. We do not accept that the “failure” to deal with the evidential conflicts referred to rendered it wrong. The Tribunal was entitled to determine the cause of the head’s behaviour as it did.
Gassmayr
[2010] ECR I-6281, [2011] 1 CMLR 7
“43 By Question 1(a), the referring court asks essentially if Article 11(1) to (3) of Directive 92/85 is capable of having direct effect and of giving rise to rights for the benefit of individuals which they can rely on against a Member State which has failed to implement that directive in national law or has implemented it incorrectly, and which the national courts are required to protect.
46 Article 11(1) to (3) of Directive 92/85 satisfies those criteria, since it imposes on Member States in unequivocal terms a precise obligation as to the result to be achieved which consists in ensuring, following the adjustment of the working conditions, a temporary transfer to another job and, during the periods of absence from work during pregnancy referred to in Articles 5 to 7 thereof and maternity leave referred to in Article 8, the employment rights of pregnant workers and workers who have recently given birth or are breastfeeding and the maintenance of payment and/or entitlement to an adequate allowance.
47 It is true that Article 11(1) of Directive 92/85 provides that, as regards pregnant workers in the cases referred to in Article 5 – that is, pregnant workers whose conditions of employment have been temporarily adjusted, who have been temporarily transferred to another job or, as a last resort, who have been granted leave from work – that income must be guaranteed in accordance with national legislation and/or national practice.
48 However, the precision and unconditional nature of Article 11(1) of Directive 92/85 is not affected by the reference to national legislation and national practice. Although that provision leaves to the Member States a certain degree of latitude when they adopt rules in order to implement it, that fact does not affect the precise and unconditional nature of that provision. The implementing rules cannot, by any means, apply to the content of the right enshrined by Article 11(1) and cannot thereby limit the existence or restrict the scope of that right (see, Parviainen, paragraph 55, and, as regards Article 10 of Directive 92/85, Case C-438/99 Jiménez Melgar [2001] ECR I-6915, paragraphs 33 and 34; see also, by analogy, Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraph 105, and Case C-268/06 Impact [2008] ECR I-2483, paragraph 63).
49 Similarly, Article 11(3) of Directive 92/85 provides that, as regards workers on maternity leave referred to in Article 8, the allowance referred to in Article 11(2)(b) is to be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health.
50 However, the fact that, under Article 11(3) of Directive 92/85, that income may be subject to a ceiling determined by national legislation, so that the amount of such an allowance may vary from one Member State to another, likewise does not affect the precise and unconditional nature of that provision, nor that of Article 11(2). Since the income which must be guaranteed to a worker on maternity leave is established by law, the application of the ceiling provided for in Article 11(3) does not render Article 11(2) and (3) incapable of being applied by a court to the facts of the dispute which it is to hear and determine and, consequently, cannot render the subject-matter of that provision insufficiently precise (see, by analogy, Impact, paragraph 61).
51 As regards the power left to the Member States, in accordance with Article 11(4) of Directive 92/85, to subject the right to pay or the allowance referred to in Article 11(1) and (2)(b) to the condition that the worker concerned must fulfil the conditions for the entitlement to those advantages provided for by national legislation, it must be observed that those conditions of entitlement do not affect the minimum protection laid down in Article 11(1) to (3) and are, in any event, open to judicial review.
52 It must therefore be held that the provisions of Article 11(1) to (3) of Directive 92/85 fulfil all the conditions required to have direct effect.
53 In those circumstances, the answer to Question 1(a) is that Article 11(1) to (3) of Directive 92/85 has direct effect and gives rise, for the benefit of individuals, to rights which they can rely on against a Member State which has failed to implement that directive in national law or has implemented it incorrectly, and which the national courts must protect.
Questions 1(b) and (c) on the right to the payment of an on-call duty allowance
71 It is clear that the effectiveness of Directive 92/85 and the objectives pursued by it would not be guaranteed if it were open to an employer, because of the establishment of a reduced level of income on the basis of Article 11(1) of that directive, to have recourse to Article 5(3) in order to reduce the financial loss he might suffer on account of the absence of the pregnant worker during her pregnancy.
72 Where the Member States and, where appropriate, management and labour choose, in accordance with Article 11(1) of Directive 92/85, to ensure that a pregnant worker who is granted leave or is prohibited from working in accordance with Article 5(3) receives an income in the form of a payment, an adequate allowance or a combination of the two, that income must in any event be made up of that worker’s basic monthly salary and the pay components or supplements relating to her occupational status – which is in not in any way affected by the leave granted – such as allowances relating to the seniority of the worker concerned, her length of service and her professional qualifications (see, to that effect, Parviainen, paragraph 60).
73 Any other interpretation of Article 11(1) of Directive 92/85 concerning the entitlement to income of pregnant workers covered by Article 5 would be liable to undermine the effectiveness of the directive and deprive it of a significant part of its substance.
74 According to the documents before the Court, the pay to which a pregnant worker who is prohibited from working during her pregnancy under Paragraph 3(3) of the MSchG is entitled is calculated in accordance with Paragraph 14(1) and (2) of that law. Under those provisions, a pregnant worker is entitled to pay equivalent to the average earnings she received in the 13 weeks preceding the prohibition on working. However, the on-call duty allowance to which the worker was entitled during that reference period is not taken into account in calculating those average earnings.
75 For the reasons set out in paragraphs 60 to 67 of this judgment, the exclusion of the on-call duty allowance from the pay which a pregnant worker, temporarily granted leave from work during her pregnancy, is entitled to claim cannot be regarded as contrary to Article 11(1) of Directive 92/85.
76 Having regard to all of the foregoing, the answer to be given to the referring court is that Article 11(1) of Directive 92/85 must be interpreted as not precluding national legislation which provides that a pregnant worker temporarily granted leave from work on account of her pregnancy is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her pregnancy with the exception of the on-call duty allowance.
The entitlement to the on-call duty allowance of a worker on maternity leave
77 The referring court also asks whether Article 11(2) and (3) of Directive 92/85 must be interpreted as precluding national legislation which provides that a worker on maternity leave is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her maternity leave with the exception of the on-call duty allowance.
78 As is clear from paragraphs 61 and 64 of this judgment, as it is based on the employment relationship and paid to the worker according to the length of the on-call duty performed during overtime hours and the average number of calls on the worker made during that period, the on-call duty allowance falls within the definition of pay in Article 141 EC.
79 However, it does not follow that a worker who is absent from work on account of maternity leave is entitled, in accordance with Article 11(2) and (3) of Directive 92/85, to all the supplements and allowances that she receives every month when she is working and carries out the duties entrusted to her by her employer.
80 According to settled case-law, workers taking maternity leave provided for by national legislation are in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or with that of a woman actually at work, or on sick leave (see, to that effect, Case C-342/93 Gillespie and Others [1996] ECR I-475, paragraph 17; Case C-411/96 Boyle and Others [1998] ECR I-6401, paragraph 40; and Alabaster, paragraph 46).
81 The maternity leave granted to a worker is intended, first, to protect a woman’s biological condition during and after pregnancy and, second, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see Case 184/83 Hofmann [1984] ECR 3047, paragraph 25; Case C-136/95 Thibault [1998] ECR I-2011, paragraph 25; and Boyle and Others, paragraph 41).
82 In those circumstances, pregnant workers cannot usefully rely on the provisions of Article 141 EC or Article 11(2) and (3) of Directive 92/85 to claim that they should continue to receive full pay while on maternity leave as though they were actually working, like other workers (see, to that effect, Gillespie and Others, paragraph 20, and Alabaster, paragraph 46).
83 As is clear from Directive 92/95 and the relevant case-law of the Court, the legislature of the European Union wished to ensure that, during her maternity leave, the worker receives an income at least equivalent to the sickness allowance provided for by national social security legislation in the event of a break in her activities on health grounds (Boyle and Others, paragraph 32).
84 Female workers must be guaranteed an income of that level during their maternity leave, irrespective of whether, in accordance with Article 11(2)(b) of Directive 92/85, it is paid in the form of an allowance, a payment, or a combination of the two (Boyle and Others, paragraph 33, and Lewen, paragraph 22).
85 In accordance with Article 11(2) and (3) of the directive, during maternity leave, the employer must ensure that workers continue to receive a payment and/or entitlement to an adequate allowance, and the income guaranteed to female workers during maternity leave must be adequate within the meaning of Article 11(3) whether it is paid in the form of a payment, an allowance, or a combination of the two (Boyle and Others, paragraph 34).
86 Where a worker is absent from work because she is on maternity leave, the minimum protection required by Article 11(2) and (3) of Directive 92/85 does not therefore require that the person concerned should continue to receive full pay or the payment of the on-call duty allowance.
87 In the case in the main proceedings, the referring court is unsure, however, as to the possible effect on the entitlement to remuneration of a worker on maternity leave of the fact that the Member State provides that that worker is entitled to pay equivalent to the average earnings that she received during a reference period prior to the beginning of her maternity leave with the exception of the on-call duty allowance.
88 In that connection, it should be recalled that Article 11(2) and (3) of Directive 92/85 provides only for minimum protection with respect to the entitlement to income of pregnant workers who have been granted leave from work during their maternity leave under Article 8 of that directive. No provision of the directive prevents the Member States or, where appropriate, management and labour from providing that a pregnant worker should continue to receive all the pay components and allowances, including the on-call duty allowance, to which she was entitled before her pregnancy and maternity leave.
89 Directive 92/85, which was adopted in accordance with Article 118A of the EC Treaty (Articles 117 to 120 of the EC Treaty were replaced by Articles 136 EC to 143 EC), does not prevent a Member State, as is clear from Article 137(4) EC, from maintaining or introducing more stringent protective measures provided that they are compatible with the provisions of the Treaty (see, to that effect, Jiménez Melgar, paragraph 37).
90 If the pay scheme provided for by national legislation such as that at issue in the main proceedings constitutes a protective measure more favourable to workers on maternity leave than that required by Directive 92/85, the exclusion of certain pay components from the calculation of the income due during maternity leave cannot be regarded as contrary to Article 11(2) and (3) of that directive.
91 Accordingly, the answer to be given to the referring court is that that Article 11(2) and (3) of Directive 92/85 must be interpreted as not precluding national legislation which provides that a worker on maternity leave is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her maternity leave, with the exception of the on-call duty allowance.
Parviainen
[2011] ICR 99, [2011] 1 CMLR 8, [2011] CEC 494
“29 By its question, the referring court asks essentially whether Article 11(1) of Directive 92/85 must be interpreted as meaning that a pregnant worker who, in accordance with Article 5(2) thereof, has been temporarily transferred to a post in which she performs tasks other than those which she performed prior to that transfer, is entitled to the same pay as she received on average before the transfer. The referring court also asks whether the type of allowances received by that worker and the reasons for the payment of those allowances while performing her previous duties is relevant in that respect.
30 As a preliminary point, it should be recalled that because certain activities may present a specific risk of exposure to hazardous agents, processes or working conditions for a pregnant worker or for one who is breast-feeding or who has recently given birth, such as those listed in Annex I to Directive 92/85, endangering safety or health, the European Union legislature, by adopting Directive 92/85, introduced the requirement to evaluate and communicate risks and a prohibition on the exercise of certain activities (see, to that effect, Case C-203/03 Commission v Austria [2005] ECR I-935, paragraph 44).
31 Where the results of the risk evaluation carried out in accordance with Article 4 of Directive 92/85 reveal a risk to safety or health and an effect on the pregnancy or breastfeeding of a worker Article 5(1) and (2) of that directive provide that the employer is required temporarily to adjust the working conditions and/or the working hours or, if that not technically and/or objectively feasible or cannot reasonably be required on duly substantiated grounds, to move the worker concerned to another job.
32 It is only when such a move is also not feasible that Article 5(3) of that directive provides that the worker is to be granted leave, in accordance with national legislation and/or national practice, for the whole of the period necessary to protect her safety or health (Case C-66/96 Høj Pedersen and Others [1998] ECR I-7327, paragraph 57).
33 It is clear from Article 11(1) of Directive 92/85 that, in the cases referred to in Articles 5, 6 and 7 thereof, the rights relating to the employment contract, including the maintenance of a payment to, and/or entitlement to an adequate allowance for pregnant workers, must be ensured in accordance with national legislation and/or national practice.
34 It should be recalled that, as regards workers on maternity leave, Article 11(2)(b) of Directive 92/85 also provides that they must be guaranteed ‘the maintenance of a payment to, and/or entitlement to an adequate allowance’.
35 According to settled case-law, the concept of pay used in Article 11 of that directive, like the definition in the first subparagraph of Article 141(2) of the Treaty, encompasses the consideration paid directly or indirectly by the employer during the worker’s maternity leave in respect of her employment. By contrast, the concept of allowance to which that provision also refers includes all income received by the worker during her maternity leave which is not paid to her by her employer pursuant to the employment relationship (see Case C-411/96 Boyle and Others [1998] ECR I-6401).
36 As regards the concept of the adequate allowance to which workers on maternity leave are entitled under Article 11(2)(b) of Directive 92/85, the Court has also held that the definition in Article 11(3) is intended to ensure that during her maternity leave the worker receives an income at least equivalent to the sickness allowance provided for by national social security legislation in the event of a break in her activities on health grounds (Boyle and Others, paragraph 32).
37 According to that case-law, female workers must be guaranteed an income of that level during their maternity leave, irrespective of whether, in accordance with Article 11(2)(b) of Directive 92/85, it is paid in the form of an allowance, pay or a combination of the two (Boyle and Others, paragraph 33).
73 Having regard to all of the foregoing, the answer to the question referred is that Article 11(1) of Directive 92/85 must be interpreted as meaning that a pregnant worker who, in accordance with Article 5(2) thereof, has been temporarily transferred on account of her pregnancy to a job in which she performs tasks other than those she performed prior to that transfer, is not entitled to the pay she received on average prior to that transfer. In addition to the maintenance of her basic salary, such a worker is entitled, pursuant to Article 11(1), to pay components or supplementary allowances relating to her professional status, such as allowances relating to her seniority, her length of service and her professional qualifications. Although Article 11(1) of Directive 92/85 does not preclude the use of a method of calculating remuneration to be paid to such a worker based on the average
amount of the allowances linked to working conditions of all the air crew in the same pay grade during a given reference period, the failure to take account of those pay components or supplementary allowances must be regarded as contrary to that provision.
Roca Alvarez
[2011] 1 CMLR 28, [2011] All ER (EC) 253,
“Directive 76/207
18 By its question the referring court asks, in essence, whether Directive 76/207 must be interpreted as precluding a national measure such as the one at issue in the main proceedings, which provides that female workers who are mothers and whose status is that of an employed person are entitled, in various ways, to take leave during the first nine months following the child’s birth, whereas male workers who are fathers with that same status are not entitled to the same leave unless the child’s mother is also an employed person.
21 It should be noted that the measure at issue in the main proceedings provides that ‘breastfeeding’ leave specifically takes the form of permission to be absent during the working day or a reduction of its duration. That measure has the effect of changing working hours. It therefore affects ‘working conditions’ within the meaning of Article 5 of Directive 76/207 (see, to that effect, Case C-187/00 Kutz-Bauer [2003] ECR I-2741, paragraphs 44 and 45).
22 Furthermore, in principle that measure restricts the right to leave at issue in the main proceedings to mothers, the child’s father being entitled to this leave only on the condition that both parents are employed persons.
23 It follows that mothers whose status is that of an employed person are always entitled to ‘breastfeeding’ leave whilst fathers whose status is that of an employed person are only so entitled if the child’s mother is also an employed person. Thus, for men whose status is that of an employed person the fact of being a parent is not sufficient to gain entitlement to leave, whereas it is for women with an identical status.
24 However, the positions of a male and a female worker, father and mother of a young child, are comparable with regard to their possible need to reduce their daily working time in order to look after their child (see by analogy, in relation to the position of male and female workers assuming the upbringing of their children, Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 56, and, in relation to their position as regards use of nursery services, Case C-476/99 Lommers [2002] ECR I’2891, paragraph 30).
25 It must be stated that the measure at issue in the main proceedings establishes a difference on grounds of sex, within the meaning of Article 2(1) of Directive 76/207, as between mothers whose status is that of an employed person and fathers with the same status.
26 As concerns justification for such a difference in treatment, Article 2(3) and (4) of Directive 76/207 states that its application is without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity, and to measures to promote equal opportunities for men and women, in particular by removing existing inequalities which affect women’s opportunities in respect of working conditions.
27 First of all, as regards the protection of women in connection with pregnancy and maternity, the Court has repeatedly held that, by reserving to Member States the right to retain or introduce provisions which are intended to ensure that protection, Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment of the sexes, first, of protecting a woman’s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows childbirth (see Case 184/83 Hofmann [1984] ECR 3047, paragraph 25; Case C-32/93 Webb [1994] ECR I-3567, paragraph 20; Case C-394/96 Brown [1998] ECR I-4185, paragraph 17; and Case C-203/03 Commission v Austria [2005] ECR I-935, paragraph 43).
33 As the Court has consistently held, Article 2(4) of Directive 76/207 is specifically and exclusively designed to authorise measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in society. That provision thus authorises national measures relating to access to employment, including promotion, which give a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men (see Case C-450/93 Kalanke [1995] ECR I-3051, paragraphs 18 and 19; Case C-409/95 Marschall [1997] ECR I-6363, paragraphs 26 and 27; Case C-158/97 Badeck and Others [2000] ECR I-1875, paragraph 19; and Lommers, paragraph 32).
34 The aim of Article 2(4) is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and, thus, in accordance with Article 157(4) TFEU, to prevent or compensate for disadvantages in the professional career of the relevant persons (see, to that effect, Kalanke, paragraph 19; Case C-407/98 Abrahamsson and Anderson [2000] ECR I-5539, paragraph 48; and Case C-319/03 Briheche [2004] ECR I-8807, paragraph 25).
35 As stated in paragraph 21 of this judgment, the leave at issue in the main proceedings takes the form of permission to be absent during the working day or a reduction of its duration. Certainly, such a measure could have the effect of putting women at an advantage by allowing mothers whose status is that of an employed person to keep their job and to devote time to their child. That effect is reinforced by the fact that if the father of the child is himself an employed person, he is entitled to take this leave in the place of the mother, who would not suffer adverse consequences for her job as a result of care and attention devoted to the child.
36 However, to hold, as the Spanish Government submits, that only a mother whose status is that of an employed person is the holder of the right to qualify for the leave at issue in the main proceedings, whereas a father with the same status can only enjoy this right but not be the holder of it, is liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties (see, to that effect, Lommers, paragraph 41).
37 As the Advocate General points out at point 47 of her Opinion, to refuse entitlement to the leave at issue in the main proceedings to fathers whose status is that of an employed person, on the sole ground that the child’s mother does not have that status, could have as its effect that a woman, such as the mother of Mr Roca Álvarez’s child, who is self-employed, would have to limit her self-employed activity and bear the burden resulting from the birth of her child alone, without the child’s father being able to ease that burden.
38 Consequently, a measure such as that at issue in the main proceedings cannot be considered to be a measure eliminating or reducing existing inequalities in society within the meaning of Article 2(4) of Directive 76/207, nor as a measure seeking to achieve substantive as opposed to formal equality by reducing the real inequalities that can arise in society and thus, in accordance with Article 157(4) TFEU, to prevent or compensate for disadvantages in the professional careers of the relevant persons.
39 It follows from all those considerations that Article 2(1), (3) and (4) and Article 5 of Directive 76/207 must be interpreted as precluding a national measure such as the one at issue in the main proceedings, which provides that female workers who are mothers and whose status is that of an employed person are entitled, in various ways, to take leave during the first nine months following the child’s birth, whereas male workers who are fathers with that same status are not entitled to the same leave unless the child’s mother is also an employed person.
…….On those grounds, the Court (Second Chamber) hereby rules:
Article 2(1), (3) and (4) and Article 5 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, must be interpreted as precluding a national measure such as the one at issue in the main proceedings, which provides that female workers who are mothers and whose status is that of an employed person are entitled, in various ways, to take leave during the first nine months following the child’s birth, whereas male workers who are fathers with that same status are not entitled to the same leave unless the child’s mother is also an employed person.
Telecom Eireann v. O’Grady
[1998] 3 I.R. 439
Hamilton C.J.
“Section 3 (1) of the Act of 1977 provides that:-
“A person who is an employer or who obtains under a contract with another person the services of employees of that other person shall not discriminate against an employee or a prospective employee or an employee of that other person in relation to access to employment, conditions of employment (other than remuneration or any condition relating to an occupational pension scheme) training or experience for or in relation to employment, promotion or re-grading in employment or classification of posts in employment.”
Section 3 (2) provides that:-
“An employer shall not, in relation to his employees or to employment by him, have rules or instructions which would discriminate against an employee or class of employee, and shall not otherwise apply or operate a practice which results or would be likely to result in an act which is a contravention of any provision of this Act when taken in conjunction with section 2(c).”
Section 2 (a) of the Act provides that:-
“For the purposes of this Act, discrimination shall be taken to occur in any of the following cases –
(a) where by reason of his sex a person is treated less favourably than a person of the other sex.”
Section 16 of the Act provides that:-
“Nothing in this Act shall make it unlawful for an employer to arrange for or provide special treatment to women in connection with pregnancy or childbirth.”
It is clear that the provisions of the scheme outlined in circular 20/83 treat adoptive mothers more favourably than adoptive fathers, including the respondent in that it is only available to women civil servants and that such favourable treatment amounts to discrimination by reason of the foregoing provision of the Act.
………
“Having considered the judgment of the European Court of Justice in Hofmann v. Barmer Ersatzkasse (Case 184/83) [1984] E.C.R. 3047 and the Commission v. Italy (Case 163/82) [1983] E.C.R. 3273, the learned trial judge went on to say that at p. 381:-
“The reality of the present case is that parliament in Ireland (unlike Italy) in enacting the Employment Equality Act, 1977 chose to permit an employer to arrange for or provide special treatment to women in connection with ‘pregnancy or childbirth’ only. There is no doubt but that parliament could have expressed this exemption by reference to the words ‘pregnancy or maternity’ being the words sanctioned by article 2 (3) of the Council Directive. They chose not to do so. Undoubtedly, the word ‘maternity’ has a wider connotation than ‘childbirth’. Unquestionably, the latter term in its ordinary context would not extend to or include ‘adoption’.
…..
The purpose of the Directive and the effect of art. 2(3) was dealt with in the judgment of the European Court in Hofmann v. Barmer Ersatzkasse (Case 184/83) [1984] E.C.R. 3047 at p. 3074 as follows:-
“The directive is designed to implement the principle of equal treatment for men and women as regards, inter alia, ‘working conditions’, with a view to attaining the social policy aims of the EEC Treaty to which the third recital in the preamble to the directive refers.
To that end, Article 1 defines ‘the principle of equal treatment’ as meaning that the directive seeks to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, promotion, vocational training and working conditions. According to Article 2(1), the principle of equal treatment means ‘that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.’ Under Article 5(1), application of the principle of equal treatment with regard to working conditions ‘means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex’; paragraph (2) of the article requires Member States to abolish any laws, regulations and administrative provisions contrary to the principle of equal treatment and to amend those which conflict with the principle ‘when the concern for protection which originally inspired them is no longer well founded’.”
With regard to para. 3 of art. 2 of the Directive the Court stated at p. 3075:-
“It should further be added, with particular reference to paragraph (3), that, by reserving to Member States the right to retain, or introduce provisions which are intended to protect women in connection with ‘pregnancy and maternity’, the directive recognizes the legitimacy, in terms of the principle of equal treatment, of protecting a woman’s needs in two respects. First, it is legitimate to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.
In principle, therefore, a measure such as maternity leave granted to a woman on expiry of the statutory protective period falls within the scope of Article 2(3) of Directive 76/207, inasmuch as it seeks to protect a woman in connection with the effects of pregnancy and motherhood. That being so, such leave may legitimately be reserved to the mother to the exclusion of any other person, in view of the fact that it is only the mother who may find herself subject to undesirable pressures to return to work prematurely.”
With regard to the discretion of the member states in providing such protective measures, the Court stated at p. 3075:-
“Furthermore, it should be pointed out that the directive leaves Member States with a discretion as to the social measures which they adopt in order to guarantee, within the framework laid down by the directive, the protection of women in connection with pregnancy and maternity and to offset the disadvantages which women, by comparison with men, suffer with regard to the retention of employment. Such measures are, as the Government of the United Kingdom has rightly observed, closely linked to the general system of social protection in the various Member States. It must therefore be concluded that the Member States enjoy a reasonable margin of discretion as regards both the nature of the protective measures and the detailed arrangements for their implementation.”
Consequently, the position under the Directive is that, while the express purpose of the Directive is to secure equal treatment for men and women as regards working conditions, it permits derogation from that principle in the circumstances set forth in the Directive. In particular, and relevant to this case, the Directive is without prejudice to provisions concerning the protection of women, particularly as regards “pregnancy and maternity”. The Directive reserved the right to member states to retain, or introduce provisions which are intended to protect women in connection with “pregnancy and maternity” and, as stated in Hofmann v. Barmer Ersatzkasse (Case 184/83) [1984] E.C.R. 3047, the member states have a reasonable margin of discretion as regards both the nature of the protective measures and the detailed arrangements for their implementation.
In the exercise of its discretion in this regard, the Oireachtas, by s. 16 of the Act, exempted from the provisions of the Act securing equal treatment for men and women, arrangements by an employer which arranged for or provided special treatment to women in connection with pregnancy or childbirth.
Having regard to the provisions of art. 2(3) of the Directive, it would have been permissible for the Oireachtas to make special provision for women in connection with pregnancy, maternity and having regard to the decision of the European Court in the Commission v. Italy (Case 163/82) [1983] E.C.R. 3273. The Oireachtas, however, chose not to do so but limited the exemptions from the provisions of the Act to arrangements in respect of pregnancy or childbirth.
The Oireachtas must be presumed to have been aware of the provisions of the Directive and in particular the provisions of art. 2 (3) thereof and that the use of the word “childbirth” in s. 16 of the Act was deliberate.
The question of maternity protection was subsequently dealt with by the Oireachtas in the Maternity Protection of Employees Act, 1981.
The purpose of the use of the words “pregnancy or childbirth” was to ensure the protection of a woman’s biological condition during the pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth.
The provisions of s. 16 of the Act are quite clear and explicit and no matter what manner of interpretation is applied thereto are incapable of being interpreted as to include”adoption”.
In so providing the Oireachtas was exercising the discretion conferred on member states by the Directive and it is not for this Court to extend such protection.
As stated by Simon L.J. in Reg. v. Governor of Pentonville Prison, Ex p. Cheng [1973] A.C. 931, at p. 950 of the report:-
“What Maxwell on Interpretation of Statutes, 12th ed. (1969), p. 28 calls ‘the first and most elementary rule of construction’ is that (except in technical legislation) it is to be assumed that the words and phrases are used in their ordinary and natural meaning.
Moreover: ‘It is a corollary to the general rule of literal construction that nothing is to be added to . . . a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express’ (p. 33)”
The scheme, upon which the appellant relies and which is set forth in circular 20/83, is not a statutory scheme and is not one to which the provisions of s. 16 of the Act of 1977 applies. An adopted child has not been born to a woman who benefits under the adoptive leave scheme and the pregnancy and childbirth exceptions to the prohibition against discrimination are therefore not applicable.
The scheme is clearly discriminatory against male persons, including the respondent herein.
Consequently, the appeal in this case must be dismissed.
Busch
[2003] EUECJ C-320/01
“In….Busch’s view, the obligation for a woman to declare her pregnancy before commencing new employment constitutes discrimination against her on grounds of sex. She argues that this is also the case where, in an existing employment relationship, the employee decides to return to work at the end of a shortened period of parental leave. The financial loss for the employer through granting the protection due to pregnant women and, where appropriate, grants of leave due to prohibitions of work, should not be taken into consideration.
Ms Busch adds that, as it was, she would have been able to carry out her duties until the start of her maternity leave, even taking into account the very minimal restrictions which would have been imposed on her, such as the prohibition on handling syringes and lifting heavy loads. The prohibited activities took up only a few minutes of each working day.
……..The German Government submits that although, according to settled case-law, Directive 76/207 prohibits restrictions on access to employment and on dismissals due to a woman’s being pregnant, to work prohibitions and to protective measures relating to pregnancy, that case-law is not applicable to the present case, which involves the conditions and ways of carrying out a pre-existing employmentrelationship. In that light, the circumstances of the main proceedings in this case differ from those where the Court has had to rule on issues involving the hiring or dismissal of a female employee (Case C-179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I-3979; Case C-421/92 Habermann-Beltermann [1994] ECR I-1657; Case C-32/93 Webb [1994] ECR I-3567; Case C-207/98 Mahlburg [2000] ECR I-549; and Case C-109/00 Tele Danmark [2001] ECR I-6993. Ms Buschenjoyed the security of an employment contract for an indefinite term, the existence of which was not disputed when the clinic contested the validity of its consent to an earlier end to the parental leave.
The German Government also submits that Ms Busch, whilst aware that she would be unable to carry out a large share of her duties because of the protective measures in place for pregnant women, was seeking to obtain the supplementary allowance paid by the employer to supplement the maternity allowance. Such conduct was not compatible with the duty of loyalty and mutual trust which should prevail in labour relations and could be likened to an abuse of process.
The Commission submits that the refusal by an employer, on account of pregnancy, to reinstate an employee before the end of parental leave constitutes direct sex discrimination, contrary to Article 3(1) of Directive 76/207. Since pregnancy is discriminatory and thus not a criterion which the employer may take into account, the employee was not obliged to inform her employer of her condition (see, to that effect, Tele Danmark, paragraph 34).
Moreover, according to the settled case-law of the Court, discrimination against women cannot be justified by the existence of measures in place to protect pregnant women (see Habermann-Beltermann, paragraph 24). Nor can the financial loss suffered by the employer justify refusing employment on grounds of pregnancy (see Case C-177/88 Dekker [1990] ECR I-3941, paragraph 12; and Mahlburg, paragraph 29), even when the contract of employment is for a fixed term (see Tele Danmark, paragraph 30).
…….When an employer takes an employee’s pregnancy into consideration in the refusal to allow her to return to work before the end of her parental leave, that constitutes direct discrimination on grounds of sex (see, concerning refusal to hire, Dekker and Mahlburg; concerning dismissal, see Webb and Tele Danmark; and, concerning refusal to renew a contract for a fixed term, see Case C-438/99 Jiménez Melgar [2000] ECR I-6915).
Since the employer may not take the employee’s pregnancy into consideration for the purpose of applying her working conditions, she is not obliged to inform the employer that she is pregnant.
It also follows from the case-law of the Court that discrimination on grounds of sex cannot be justified by the fact that she is temporarily prevented, by a legislative prohibition imposed because of pregnancy, from performing all of her duties (see Habermann-Beltermann, paragraphs 24 and 26; and Mahlburg, paragraph 27).
To be sure, Article 2(3) of Directive 76/207 reserves to Member States the right to retain or introduce provisions which are intended to protect women in connection with ‘pregnancy and maternity’, by recognising the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman’s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see Habermann-Beltermann, paragraph 21). Articles 4(1) and 5 of Directive 92/85 also guarantee special protection for pregnant women and women who have recently given birth or are breastfeeding in respect of any activity liable to involve a specific risk to their safety or health or negative effects on the pregnancy or breastfeeding.
However, to accept that a pregnant employee may be refused the right the return to work before the end of parental leave due to temporary prohibitions on performing certain work duties for which she was hired would be contrary to the objective of protection pursued by Article 2(3) of Directive 76/207 and Articles 4(1) and 5 of Directive 92/85 and would rob them of any practical effect.
As regards the financial consequences which might ensue for the employer from the obligation to reinstate a pregnant employee unable for the duration of the pregnancy, to carry out all her duties, the Court has already held that discrimination on grounds of sex cannot be justified on grounds relating to the financial loss for an employer (Dekker, paragraph 12; Mahlburg, paragraph 29; and Tele Danmark, paragraph 28).
Article 5 of Directive 92/85 allows the employer, where there is a risk to the safety or health of a worker, or a negative effect on her pregnancy or breastfeeding, temporarily to adjust the working conditions or hours or, if that is not possible, move the worker to another job or, as a last resort, grant the worker leave.
The fact that, in asking to return to work, Ms Busch intended to receive a maternity allowance higher than the parental leave allowance, as well as the supplementary allowance paid by the employer, cannot legally justify sex discrimination over working conditions.
In the light of the foregoing, the answer to the first question must be that Article 2(1) of Directive 76/207 is to be interpreted as precluding a requirement that an employee who, with the consent of her employer, wishes to return to work before the end of her parental leave must inform her employer that she is pregnant in the event that, because of certain legislative prohibitions, she will be unable to carry out all of her duties.
The second question
By its second question, the national court essentially asks whether Article 2(1) of Directive 76/207 is to be interpreted as precluding an employer from contesting under national law the consent it gave to the reinstatement of an employee before the end of her parental leave on the grounds that it was in error as to her being pregnant.
In the light of the answer to the first question, the second question must also be answered in the affirmative. Obviously, if an employer may not take an employee’s pregnancy into consideration in the refusal to reinstate her before the end of her parental leave, nor can the employer plead that its consent to that reinstatement was vitiated because it was not aware that she was pregnant. Any national provision which might serve as a basis for such a claim must be set aside by the national court in order to ensure the full effect of Directive 76/207.
The answer to the second question must therefore be that Article 2(1) of Directive 76/207 is to be interpreted as precluding an employer from contesting under national law the consent it gave to the reinstatement of an employee to return before the end of her parental leave on the grounds that it was in error as to her being pregnant.
……
51. The costs incurred by the German Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the questions referred to it by the Arbeitsgericht Lübeck by order of 6 August 2001, hereby rules:
1. Article 2(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions is to be interpreted as precluding a requirement that an employee who, with the consent of her employer, wishes to return to work before the end of her parental leave must inform her employer that she is pregnant in the event that, because of certain legislative prohibitions, she will be unable to carry out all of her duties.
2. Article 2(1) of Directive 76/207 is to be interpreted as precluding an employer from contesting under national law the consent it gave to the reinstatement of an employee to return before the end of her parental leave on the grounds that it was in error as to her being pregnant.”
Byrne -v- Minister for Defence & ors
[2017] IEHC 453
Eagar J.
JUDGMENT of Mr. Justice Eagar delivered on the 10th day of July, 2017
1. On 28th July, 2014, Baker J. gave leave to apply by way of an application for judicial review for a number of reliefs. On 25th July, 2016, this Court made orders in respect of the following:-
(a) a declaration that the applicant is qualified for promotion from the rank of Captain to Commandant in accordance with para. 8(4) of the Defence Forces Regulations A15;
(b) a declaration that the applicant qualifies for fixed period promotion to the rank of Commandant on 28th July, 2013, after nine years service in the rank of Commandant in accordance with para. 8(4) of the Defence Forces Regulations A15; and
(c) a declaration that the respondents are in breach of Article 2(2)(c), Articles 14(2) to Article 15 of the Directive 2006/54/EC of the European Parliament and that the Council of 5th July, 2006 on the implementation the principle of equal opportunities and the equal treatment of men and women in matters of employment were breached.
2. On that date, the Court adjourned the question of whether the applicant was entitled to damages for loss of earnings, on the basis that it would hear submissions in relation to damages for loss of earnings on 28th July, 2013 to date.
3. On 9th May, 2017, the court heard evidence of the agreed actuarial reports (noting that the applicant had subsequently obtained employment as an engineer with Bord Gáis). The actuarial evidence was given by Nigel Tennant of Messrs. Seagrave – Daly & Lynch Limited Consultant Actuaries. He stated that the evidence as to agreed losses was as follows: the pension loss of €378,000.00, the gratuity loss of €80,484.00, the current contribution to Gas Networks of €114,000.00, bringing the subtotal to €344,484.00. The past loss of earnings is of €436.00 and the overseas duties for future duties is of €67,477.00. The total loss is €412,397.00 and as the award is taxable, the Court will double the figures above in order to place the plaintiff within the net figures. The Court awards the plaintiff the sum by way of loss of earnings the sum of €824,794.00.
4. Having heard the evidence, counsel for the plaintiff indicated that he proposed to call the applicant to give evidence of the effect of the treatment that she received, for the purpose of the Court giving an award of general damages.
5. Counsel for the applicant cited the case of P. v. Board of Management of A Secondary School and Health Services Executive [2010] IEHC 189. This was a claim for damages which had arisen out of earlier judicial review proceedings.
6. Therein, O’Neill J. reviewed in detail the conduct of an investigation into a complaint against the plaintiff and he held “there had been many egregious breaches of the applicant’s rights of fair procedures and natural justice.” He refused, however, to given an order for prohibition, concluding that the balance of justice was in favour of the public interest in the continuance of the investigation into the allegations made.
7. On the application of the applicant in that case, O’Neill J. directed that the proceedings be converted into a plenary hearing.
8. It is noted by this Court that the applicant in that case had requested O’Neill J. to have a plenary hearing in relation to the question of damages. In this case, no application has been made to direct that the proceedings be converted into a plenary hearing. The Court proposes to deal with the matter by way of the loss of earnings incurred by the applicant which has been outlined in evidence.
9. Counsel on behalf of the respondents indicated that there has been no mention in the course of the proceedings, or in the papers that the applicant had left the army, and that all that she was entitled to was the loss of earnings occasioned by the failure of the respondent to promote her to the rank of Commandant.
10. The Court is satisfied that it must have been reasonably foreseeable on the part of the respondents that the applicant would leave her employment in the Defence Forces, in circumstances in which the applicant was excluded from the promotion process as a result of her being on maternity leave, where she was not told that there was a Board being established to consider the issues of promotion, and where she was treated in a different manner to her work colleagues, all of whom were men. The finding of this Court was that the respondents were in breach of Articles 2, Article 14 (2) and Article 15 of the Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in respect of employment.
11. The Court rejects any suggestion that this was not reasonably foreseeable. In all the circumstances, the court will award the applicant damages for loss of earnings in the sum of €824,794.00.