Keywords
Summary

Keywords

1. Social policy – Protection of the safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Directive 92/85 – Concept of ‘worker’

(Council Directive 92/85)

2. Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Directive 76/207 – Protection of the safety and health of workers – Directives 92/85 and 86/613 – Dismissal of a member of a board of directors on account of pregnancy – Not permissible

(Council Directives 76/207, Arts 2(1) and (7), and 3(1)(c), 92/85, Art. 10, and 86/613)

Summary

1. A member of a capital company’s board of directors who provides services to that company and is an integral part of it must be regarded as having the status of worker for the purposes 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, if the activity is carried out, for some time, under the direction or supervision of another body of that company and if, in return for those activities, the board member receives remuneration. It is for the national court to undertake the assessments of fact necessary to determine whether that is so in the case pending before it.

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)