In response to a preliminary request for a ruling by the Labour Court in Ireland, an Opinion given by Advocate-General Léger in December 2004 has put forward the view that to treat pregnancy-related illnesses for sick pay purposes as if they were the same as other illnesses is discriminatory.

The request for a ruling from the European Court of Justice (ECJ) on this matter was prompted by the Labour Court's uncertainty over the matter in the case North-Western Health Board v Margaret McKenna. Under the terms of her employment contract, Ms McKenna was entitled to be paid full pay for up to 183 days sickness absence in a year, and then up to a further 183 days at half pay, up to a limit of 365 days in a four-year period. Ms McKenna suffered from a pregnancy-related illness for almost the full length of her pregnancy. She received full pay until two months before her baby was due, at which point her pay was reduced to half pay. She was then paid maternity pay for 14 weeks at her full rate of pay but, as she was still too ill to return to work, her sick pay continued at half pay.

She claimed that she had been discriminated against because her employer had treated her pregnancy-related illness as any other illness and offset it against her sick pay entitlement. She claimed that we was entitled to full pay for the two months prior to her maternity leave and that, after returning from leave, she should have received sick pay at the full rate because the pregnancy-related illness should not have counted against her entitlement.

The Labour Court subsequently referred the matter to the ECJ in order to determine whether the treatment of pregnancy-related illnesses and pathological illnesses in an identical manner amounts to discrimination on the grounds of sex and, if so, whether it is also discriminatory to offset a period of absence caused by a pregnancy-related illness against a woman's total occupational sick pay entitlement.

The Advocate-General's Opinion was as follows:

"A sick-leave scheme that treats in exactly the same way those employees who suffer from a pregnancy-related illness and those who are victims of any other illness, in that the periods of absence due to incapacity for work caused by a pregnancy-related illness and occurring during that pregnancy are set against entitlement to paid sick leave, falls within the ambit of [the European Directive] 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 the ECJ goes along with this Opinion in due course, there are serious implications for occupational sick pay schemes. A woman who is absent with a pregnancy-related illness would be entitled to full pay because that would have been her entitlement if she had been at work. The period of absence due to the pregnancy-related illness could not count towards her occupational sick pay entitlement.

In addition, UK employers already have difficulty in determining whether or not an illness is pregnancy-related when deciding whether to enforce the start of maternity leave within the four-week period before the baby is due. With full pay for several months at stake, the potential for argument between women and their employers as to whether a particular illness is pregnancy-related would be considerable.

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...back to 17 December 2004

Source:
curia.eu.int/jurisp/...