Keywords
Summary

Keywords

1 Social policy - Men and women - Equal pay - Article 119 of the Treaty and Directive 75/117 - Protection of the safety and health of workers - Pregnant workers and workers who have recently given birth or are breastfeeding - Directive 92/85 - Maternity leave - Maintenance of adequate remuneration or allowance - Concept - Payment of pay higher than the statutory payments in respect of maternity leave, subject to conditions - Conditions under which permissible

(EC Treaty, Art. 119; Council Directives 75/117, Art. 1, and 92/85, Arts 8 and 11)

2 Social policy - Men and women - Access to employment and working conditions - Equal treatment - Directive 76/207 - Protection of the safety and health of workers - Pregnant workers and workers who have recently given birth or are breastfeeding - Directive 92/85 - Maternity leave - Requirement that an employee on sick leave with a pregnancy-related illness who gives birth during that leave bring forward the date on which maternity leave commences - Permissible

(Council Directives 76/207, Art. 5(1), and 92/85, Art. 8)

3 Social policy - Men and women - Access to employment and working conditions - Equal treatment - Directive 76/207 - Protection of the safety and health of workers - Pregnant workers and workers who have recently given birth or are breastfeeding - Directive 92/85 - Maternity leave - Prohibition on taking sick-leave during the period of maternity leave unless the worker elects to return to work - Not permissible - Similar prohibition in the context of supplementary maternity leave granted by the employer - Permissible

(Council Directives 76/207 and 92/85)

4 Social policy - Men and women - Access to employment and working conditions - Equal treatment - Directive 76/207 - Protection of the safety and health of workers - Pregnant workers and workers who have recently given birth or are breastfeeding - Directive 92/85 - Maternity leave - Accrual of rights to annual leave during the period of maternity leave - Leave ceasing to accrue during a period of supplementary maternity leave granted by the employer - Permissible

(Council Directives 76/207 and 92/85, Arts 8 and 11)

5 Social policy - Approximation of laws - Protection of the safety and health of workers - Pregnant workers and workers who have recently given birth or are breastfeeding - Directive 92/85 - Maternity leave - Accrual of pension rights limited to the period of paid leave - Not permissible

(Council Directive 92/85, Arts 8 and 11)

Summary

1 Article 119 of the Treaty, Article 1 of Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and Article 11 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 do not preclude a clause in an employment contract which makes the payment, during the period of maternity leave referred to by Article 8 of Directive 92/85, of pay higher than the statutory payments in respect of maternity leave conditional on the worker's undertaking to return to work after the birth of the child for at least one month, failing which she is required to repay the difference between the amount of the pay she will have received during the period of maternity leave, on the one hand, and the amount of those payments, on the other, in so far as the level of those payments is not lower than the income which the worker concerned would receive, under the relevant national social security legislation, in the event of a break in her activities on grounds connected with her state of health.

Although, under Article 11(3) of the directive, a worker is to receive, during the period of maternity leave referred to in Article 8 of that directive, an income at least equivalent to the sickness allowance provided for under national social security legislation in the event of a break in her activities on health grounds, it is not intended under Article 11(2)(b) and (3) to guarantee her any higher income which the employer may have undertaken to pay her, under the employment contract, should she be on sick leave. Furthermore, such a clause in an employment contract does not constitute discrimination on grounds of sex for the purposes of Article 119 of the Treaty and Article 1 of Directive 75/117. Pregnant workers and workers who have recently given birth or who are breastfeeding are in an especially vulnerable situation which makes it necessary for the right to maternity leave to be granted to them but which, particularly during that leave, cannot be compared to that of a man or a woman on sick leave. 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.

2 Article 8 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 and Article 5(1) 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 do not preclude a clause in an employment contract from requiring an employee who has expressed her intention to commence her maternity leave during the six weeks preceding the expected week of childbirth, and is on sick leave with a pregnancy-related illness immediately before that date and gives birth during the period of sick leave, to bring forward the date on which her paid maternity leave commences either to the beginning of the sixth week preceding the expected week of childbirth or to the beginning of the period of sick leave, whichever is the later.

Although Article 8 of Directive 92/85 provides for a continuous period of maternity leave of at least 14 weeks, including compulsory maternity leave of at least two weeks, it none the less leaves it open to the Member States to determine the date on which maternity leave is to commence. Furthermore, pursuant to Directive 76/207, it is for every Member State, within the limits laid down in Article 8 of Directive 92/85, to fix periods of maternity leave so as to enable female workers to be absent during the period in which the disorders inherent in pregnancy and confinement occur.

3 A clause in an employment contract which prohibits a woman from taking sick leave during the minimum period of 14 weeks' maternity leave to which a female worker is entitled pursuant to Article 8(1) 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, unless she elects to return to work and thus terminate her maternity leave, is not compatible with Directive 92/85. If a woman becomes ill during the period of maternity leave and places herself under the sick leave arrangements, and that sick leave ends before the expiry of the period of maternity leave, she cannot be deprived of the right to continued enjoyment, after that date, of the maternity leave provided for by Article 8 of the directive until the expiry of the minimum period of 14 weeks, that period being calculated from the date on which the maternity leave commenced. Any other interpretation would compromise the purpose of maternity leave, in so far as that leave is intended to protect not only the woman's biological condition but also the special relationship between a woman and her child over the period which follows pregnancy and childbirth.

By contrast, a clause in an employment contract which prohibits a woman from taking sick leave during a period of leave granted to her by the employer in addition to the period of maternity leave provided for by Article 8 of Directive 92/85, unless she elects to return to work and thus terminate her maternity leave, does not fall within the scope of that provision and is compatible with 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 since the principle of non-discrimination laid down in Article 5 of that directive does not require a woman to be able to exercise simultaneously both the right to supplementary maternity leave granted to her by the employer and the right to sick leave.

4 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 and 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 do not preclude a clause in an employment contract from limiting the period during which annual leave accrues to the minimum period of 14 weeks' maternity leave to which female workers are entitled under Article 8 of Directive 92/85 and from providing that annual leave ceases to accrue during any period of supplementary maternity leave granted to them by their employer.

The accrual of annual leave constitutes a right connected with the employment contract of workers for the purposes of Article 11(2)(a) of Directive 92/85. It follows from that provision that such a right need only be ensured during the period of maternity leave of at least 14 weeks to which workers are entitled under Article 8 of that directive. Furthermore, supplementary maternity leave constitutes a special advantage, over and above the protection provided for by Directive 92/85 and is available only to women, so that the fact that annual leave ceases to accrue during that period of leave cannot amount to less favourable treatment of women.

5 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 precludes a clause in an employment contract from limiting, in the context of an occupational scheme wholly financed by the employer, the accrual of pension rights during the period of maternity leave referred to by Article 8 of that directive to the period during which the woman receives the pay provided for by that contract or national legislation. Although it is open to Member States to make entitlement to pay or the adequate allowance referred to in Article 11(2)(b) of that directive conditional upon the worker concerned fulfilling the conditions of eligibility for such benefits laid down under national legislation, no such possibility exists in respect of rights connected with the employment contract within the meaning of Article 11(2)(a). The accrual of pension rights under such an occupational scheme constitutes one of the rights connected with the employment contracts of the workers for the purposes of Article 11(2)(a) of the directive.