North Western Health Board v Margaret McKenna.

• Jurisdiction: European Union
• Date: 02 December 2004
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL
LÉGER
delivered on 2 December 2004(1)


Case C-191/03

North-Western Health Board
v
Margaret McKenna


(Reference for a preliminary ruling from the Labour Court (Ireland))

(Equal treatment for men and women – Pregnancy-related illness – Period of absence due to incapacity for work caused by a pregnancy-related illness set against the period of entitlement to sick leave – Working conditions – Directive 76/207/EEC – Discrimination)

1. This reference for a preliminary ruling is yet another concerning the rights in the Community legal order of a pregnant employed woman. The issue at the crux of this case is whether incapacity for work caused by a pregnancy-related illness and occurring during the period of pregnancy may, in accordance with Community law, be treated in the same way as incapacity for work caused by any other illness and be set against the number of days during which, under the sick-leave scheme applicable in the case, employees are entitled to have their pay maintained in full, and then in part. 2. By the questions it has referred, the Labour Court (Ireland) asks, first, whether the national rules at issue fall within the ambit of Article 141(1) and (2) EC and of Council Directive 75/117/EEC, (2) or of Council Directive 76/207/EEC. (3) The national court then seeks to ascertain whether, in the light of the provisions of Community law applicable, such rules must be regarded as discriminatory. 3. In essence, this case raises the question: is the equal treatment enjoyed by women during their pregnancy equal treatment in form or in substance? I – The legal background A – The relevant provisions of Community law 4. Article 141(1) EC enshrines the principle of equal pay for male and female workers for equal work or work of equal value. Under Article 141(2), the definition of ‘pay’ includes the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. 5. The purpose of Directive 75/117 is essentially to further the actual application of the principle of equal pay for men and women set out in Article 141 EC. Article 1 of that directive provides that that principle means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration. 6. Article 3 of the same directive requires the Member States to abolish all discrimination between men and women arising from laws, regulations or administrative provisions which is contrary to the principle of equal pay. Article 4 requires them to take the necessary measures to ensure that provisions appearing in collective agreements or individual contracts of employment which are contrary to the principle of equal pay may be declared null and void or may be amended. 7. The purpose of Directive 76/207 is, according to Article 1 thereof, to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions. 8. Article 2 of Directive 76/207 provides: ‘(1) 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. … (3) This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.’ 9. Article 5 of Directive 76/207 governs equal treatment as regards working conditions in the following terms: ‘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. 2. To this end, Member States shall take the measures necessary to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished; (b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended …’ 10. It remains to be added that the legal condition of pregnant workers is also the object of special protection under Council Directive 92/85/EEC. (4) According to Article 8 thereof, those workers are entitled to a continuous period of maternity leave of a least 14 weeks allocated before and/or after confinement, and including at least two compulsory weeks. In accordance with Article 11(2)(b) of that directive, those workers are entitled during their maternity leave to the maintenance of a payment or adequate allowance or both. According to Article 11(3), the allowance 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, subject to any ceiling laid down under national legislation. B – The relevant provisions of national law 11. The North Western Health Board’s sick-leave scheme (5) provides, inter alia, that employees are entitled to 365 days of paid sick-leave in a period of four years. It also provides that 183 days’ absence in a period of 12 months are paid at full pay and that, beyond that total of 183 days, days of absence on sick leave are paid at half-pay only, up to the limit of 365 days over four years. (6) 12. This scheme also provides that any incapacity for work arising from a pregnancy-related illness occurring before the 14 weeks of maternity leave is to be deemed to be covered by that scheme. (7) 13. Pursuant to other regulations made by the Irish Department of Health and Children, employees are also entitled to maternity leave during which they receive their pay in full. II – The facts and the dispute in the main proceedings 14. Ms McKenna is an employee of the Board. On that basis she falls within the ambit of its sick-leave scheme. 15. Ms McKenna found that she was pregnant in January 2000. She was obliged to take sick leave on medical advice, on account of a pregnancy-related illness that lasted for nearly the whole term of her pregnancy. According to the order for reference, her absences from work during her pregnancy were due solely to that illness and a medical certificate has stated that she was unfit for work. (8) As from 6 July 2000, (9) because Ms McKenna had exhausted her right to full pay during sick leave, her pay was reduced to half-pay. From 3 September to 11 December 2000 Ms McKenna was on maternity leave and received her pay at the full rate. When that leave expired, because Ms McKenna was still unfit for work on medical grounds, her pay was once more reduced by half. 16. Before the Equality Officer of the Office of the Director of Equality Investigations, Ms McKenna argued that she had been the victim of discrimination on grounds of sex in breach of Directive 76/207, inasmuch as her employer had treated pregnancy-related illness in the same way as any other illness and had set her period of incapacity for work on account of that illness against her rights to sick leave. She also maintained that the halving of her pay when her absence was due to a pregnancy-related illness amounted to unfavourable treatment, contrary to Article 141(1) and (2) EC and to Directive 75/117. 17. The Equality Officer ruled that Ms McKenna’s action was well founded. She considered that, by treating the pregnancy-related illness as though it were any other illness, the employer had discriminated on grounds of sex and that both Directive 76/207 and the Court of Justice’s case-law in that sphere required the Board to take special measures to cover absences from work due to incapacity caused by pregnancy. She considered also that to have reduced the complainant’s pay to half-pay before the start of the maternity leave was contrary to Article 141(1) and (2) EC and to Directive 75/117. The Equality Officer therefore ordered the Board to amend the provisions of its sick-leave scheme so that it no longer discriminated against female workers suffering from a pregnancy-related illness occurring during pregnancy. She also ordered the Board to pay Ms McKenna the arrears of pay due to her and to pay her damages. 18. The Board brought an appeal against that decision before the Labour Court. It argued that treating incapacity for work caused by a pregnancy-related illness in the same way as incapacity for work caused by any other illness did not constitute discrimination and was consistent with the Court’s judgment in Høj Pedersen and Others. (10) III – The questions referred for a preliminary ruling 19. The Labour Court is of the view that the case before it comprises two aspects. First, there is the question whether the complainant had suffered unequal treatment as regards her working conditions, because the period of her absence on account of incapacity for work due to a pregnancy-related illness was set against the total period of her entitlement to sick leave, with the result that the benefits which she might claim, if she should fall sick in the three following years, have been reduced or exhausted, in value and duration. Second, it falls to be established whether the complainant was...