Keywords
Summary

Keywords

1 Social policy - Men and women - Equal pay - Pregnant woman unfit for work by reason of the pregnancy - National rules providing for loss of full pay from her employer - Discrimination based on sex - Unlawful

(EC Treaty, Art. 119; Council Directive 75/117)

2 Social policy - Men and women - Equal pay - Pregnant woman absent from work for reasons not based on incapacity for work caused essentially by the pregnancy - National rules providing for loss of pay from her employer - Lawful

(EC Treaty, Art. 119; Council Directive 75/117)

3 Social policy - Men and women - Access to employment and working conditions - Equal treatment - Directive 76/207 - Protection of safety and health at work - Pregnant workers and workers who have recently given birth or are breastfeeding - Directive 92/85 - Pregnant woman fit for work - Employer sending on leave without full pay - Unlawful

(Council Directives 76/207 and 92/85)

Summary

4 It is contrary to Article 119 of the Treaty and 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 for national legislation to provide that a pregnant woman who, before the beginning of her maternity leave, is unfit for work by reason of a pathological condition connected with her pregnancy, as attested by a medical certificate, is not entitled to receive full pay from her employer but benefits paid by a local authority, when in the event of incapacity for work on grounds of illness, as attested by a medical certificate, a worker is in principle entitled to receive full pay from his or her employer.

The fact that a woman in such a situation is deprived of her full pay must be regarded as treatment based essentially on the pregnancy and thus as discriminatory.

5 It is not contrary to Article 119 of the Treaty or 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 for national legislation to provide that a pregnant woman is not entitled to receive her pay from her employer where, before the beginning of her maternity leave, she is absent from work by reason either of routine pregnancy-related minor complaints, when there is in fact no incapacity for work, or of medical recommendation intended to protect the unborn child but not based on an actual pathological condition or on any special risks for the unborn child, while any worker who is unfit for work on the grounds of illness is in principle entitled thereto.

The fact that the employee forfeits some, or even all, of her salary by reason of such absences which are not based on an incapacity for work cannot be regarded as treatment based essentially on the pregnancy but rather as based on the choice made by the employee not to work.

6 It is contrary to 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, and to 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 for national legislation to provide that an employer may send home a woman who is pregnant, although not unfit for work, without paying her salary in full when he considers that he cannot provide work for her.