Opinion of the Advocate General — ECLI:EU:C:1998:74
Date: 1998-02-19
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary
I —The facts I - 6407
II — The applicable national provisions I - 6408
A — Legal provisions concerning employment rights in the event of pregnancy
and maternity and the right to be paid when absent from work I - 6408
B — The contested provisions of the Equal Opportunities Commission Mater­
nity Scheme I - 6409
C — Provisions of the Equal Opportunities Commission Staff Handbook I - 6412
III — The preliminary questions I - 6414
IV — The applicable Community provisions I - 6415
V — Observations submitted to the Court of Justice I - 6419
VI — The jurisdiction of the Court of Justice to answer the questions submitted by the
Industrial Tribunal I - 6422
VII — Consideration of the preliminary questions I - 6423
(1) The first question I - 6424
(2) The second question I - 6431
(3) The third question I - 6432
(4) The fourth question I - 6435
(5) The fifth question I - 6436
VIII —Conclusion I - 6438
* Original language: Spanish.
I - 6406
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
1. This is the first time that the Court of Jus­
tice has been called upon to give a prelimi­
nary ruling on the interpretation of certain
provisions of Directive 92/85/EEC 1 con­
cerning maternity leave and entitlement to
the maintenance of employment rights during
such leave, at the request of a national court,
specifically the Industrial Tribunal,
Manchester (United Kingdom), which has
stayed proceedings in a number of cases before
it pending a ruling under Article 177 of the
EC Treaty on five questions, the wording of
which has been agreed between the parties.
I — The facts
2. The proceedings before the Industrial Tri­
bunal have been brought by Mrs Boyle and
other female employees of the Equal Oppor­
tunities Commission (hereinafter 'the EOC),
a public body set up under the Sex Discrimi­
nation Act 1975 to promote equal treatment
and equality of opportunity as between men
and women in the United Kingdom. The
applicants wish to have declared void certain
provisions of the EOC Maternity Scheme
(rules governing employees' absences on
account of pregnancy and maternity, herein­
after 'the Maternity Scheme'), which are incor­
porated in their employment contracts,
because, by providing for the application of
certain measures in the event of pregnancy or
maternity and/or ultimately, by reference to
sex, they discriminate against women. The
contested provisions coincide with those
applied in the Civil Service in England and
Wales.
3. The applicants are employees of the EOC
and are all of childbearing age. They have all
completed one year's service with the EOC.
They were not employed on a casual or
standby basis and none of them was employed
for a fixed term of less than two years.
Mrs Boyle started working for the EOC for
an indefinite period around 1976. During her
employment she has taken maternity leave on
two occasions. The dates of birth of the plain­
tiffs in the main proceedings are: Mrs Boyle,
23 June 1953, Mrs Taylor, 24 June 1961, and
Mrs Mansley, 14 December 1961. The last
two each took maternity leave recently and
all three may wish to take further periods of
maternity leave: hence their interest in having
the contested provisions in their employment
contracts declared void or unenforceable.
1 — Council Directive 92/85/EEC of 19 October 1992 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 breast-feeding (Tenth
individual directive within the meaning of Article 16(1) of
Directive 89/391/EEC) (OJ 1992 L 348, p. 1).
I - 6407
OPINION OF MR RUIZ-JARABO — CASE C-411/96
II — The applicable national provisions
A — Legal provisions concerning employment
rights in the event of pregnancy and mater­
nity and the right to be paid when absent
from work
4. Sections 71 to 78 of the Employment Rights
Act 1996 grant all female workers a general
right to maternity leave for a continuous
period of 14 weeks (hereinafter 'maternity
leave'), commencing either on the date which
the employee notifies to her employer or on
the first day after the beginning of the sixth
week before the expected date of childbirth,
whichever is earlier.
Sections 79 to 85 of that Act grant employees
who meet certain conditions, including con­
tinuous employment for the two preceding
years, the right to return to work after their
maternity leave, at any time during the 29
weeks following the week in which childbirth
occurred — the 'right to return to work'. To
describe the period of time for which the
worker may stop working on account of
pregnancy and maternity and retain the right
to return to work, the duration of which may,
by virtue of a concession from the employer,
exceed 29 weeks, I shall use the expression
'unpaid maternity leave'.
5. Sections 164 to 166 of the Social Security
Contributions and Benefits Act 1992 govern
the right of workers who have been employed
for a specified period, 2and whose earnings
are of a specified level, 3to receive Statutory
Maternity Pay from their employer for a
maximum of 18 weeks, if they are absent from
work on account of pregnancy or maternity.
There are two rates of Statutory Maternity
Pay: the higher rate and the lower rate. The
higher rate consists of nine-tenths of the wom­
an's normal weekly earnings in the eight weeks
preceding the 14th week before the expected
week of confinement; the lower rate, which is
fixed and amounts at present to UKL 54.55,
is paid where its amount exceeds the nine-
tenths figure. A woman who, for two con­
tinuous years ending at the start of the 14th
week prior to the expected week of confine­
ment, has worked for an employer who is
under an obligation to pay her the benefit
will receive it at the higher rate for the first
six weeks and at the lower rate for the
remainder of the period. A woman who is
entitled to Statutory Maternity Pay, but does
not qualify for the higher rate, will receive it
at the lower rate.
2 — At least 26 weeks ending with the week preceding the 14th
week before the expected week of confinement.
3 — This must not be less than the lowest level of income taken
into account for the payment of social security contributions.
I - 6408
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
Any pregnant women who do not meet the
necessary conditions to receive Statutory
Maternity Pay are entitled to receive, subject
to a maximum of 18 weeks, a Maternity
Allowance, which at present amounts to UKL
54.55 per week.
Sections 151 to 163 of the same Act govern
the right to benefits in respect of incapacity
for work on account of illness. In such cir­
cumstances, workers are entitled to receive
Statutory Sick Pay from their employers for
a maximum of 28 weeks, the present rate
being UKL 54.55 per week.
6. Paragraph 5 of Schedule 5 to the Social
Security Act 1989, which incorporates in
domestic law the provisions of Directive
86/378/EEC, 4 governs the situation of a
woman on maternity leave regarding the
accrual of pension rights under an occupa­
tional scheme. By virtue of that provision, a
woman must be allowed to continue to belong
to an occupational pension scheme as if she
were working normally. She may not receive
more favourable treatment than a woman in
active employment, but her contributions to
the pension scheme will be based on the
amount she receives from her employer whilst
on maternity leave by way of contractual
remuneration or Statutory Maternity Pay.
B — The contested provisions of the Equal
Opportunities Commission Maternity Scheme
7. The rules relevant to the decision to be
given in these proceedings are as follows:
3. Paid Maternity Leave
3.1 A member of staff will be allowed 3
months and 1 week's paid maternity leave
for the period of continuous absence
before and after childbirth, provided that
she:
— states that she intends to return to
work in the EOC after childbirth and
she agrees to repay any payment made
during that period if she fails to return.
Such payment will exclude any Statu­
tory Maternity Pay to which there is
an entitlement;
4 — Council Directive 86/378/EEC of 24 July 1986 on the imple­
mentation of the principle of equal treatment for men and
women in occupational social security schemes (OJ 1986
L 225, p. 40).
I - 6409
OPINION OF MR RUIZ-JARABO — CASE C-411/96
— is in paid service with the EOC at the
time her maternity leave begins and
has rendered at least one year's such
service;
— is not employed on a casual, standby
or short notice appointment;
— is not employed on a fixed-term
appointment of less than two years.
4. Unpaid maternity leave.
A member of staff who qualifies for paid
maternity leave will also qualify for unpaid
maternity leave, subject to the folio-wing
restrictions:
— the total period of paid and unpaid
maternity leave must not exceed 52
weeks;
— unpaid maternity leave cannot be ter­
minated earlier than 41 weeks from
the actual date of childbirth, unless
the maximum limit of 52 weeks is
exceeded or the employee agrees to
curtail it.
4.2 A permanent member of staff with less
than one year's service is entitled to a
total of 26 weeks' leave.
4.3 All other employees, regardless of type of
contract and number of hours worked,
are entitled to 14 weeks' leave.
5.1 Maternity leave 5 may start on any day of
the working week, subject to the fol­
lowing restrictions:
— unpaid maternity leave cannot start
earlier than 14 weeks before the
expected week of childbirth;
— paid maternity leave cannot start ear­
lier than 11 weeks before the expected
week of childbirth;
5 — Footnote not relevant to English text
I - 6410
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
— paid maternity leave must start from
the actual date of childbirth if this
occurs earlier than:
— the expected week of childbirth,
or
— the date a member of staff has
specified for beginning her mater­
nity leave.
5.2 If a member of staff specifies that she
wishes to begin her maternity leave in
any of the six weeks before the expected
week of childbirth, the following restric­
tion applies:
— if she is on a pregnancy-related sick
absence immediately before her speci­
fied date and childbirth occurs during
the period of sick absence, paid mater­
nity leave can be brought forward to
whichever is the later of:
— the beginning of the period of sick
absence;
— the sixth week before the expected
week of childbirth.
6.3 The minimum period of service that must
be completed following paid maternity
leave is one calendar month. Where this
requirement is not satisfied, the member
of staff will be asked to repay any salary
or wages paid for the period of maternity
leave (less any Statutory Maternity Pay).
7.1 Paid sick leave is not allowed once paid
maternity leave has begun or during a
period of unpaid maternity leave. There
may, however, be an entitlement to Statu­
tory Sick Pay during unpaid maternity
leave. Evidence of incapacity must be
submitted to the Personnel and Payroll
Unit so that any eligibility for Statutory
Sick Pay can be determined.
7.2 Where a member of staff has provided at
least three weeks' notification of her inten­
tion to return to work on a specified date,
paid sick leave will be allowed from this
date. Paid sick leave following childbirth
terminates the maternity leave arrange­
ments.
I-6411
OPINION OF MR RUIZ-JARABO — CASE C-411/96
7.3 The period of paid and/or unpaid mater­
nity leave and unpaid leave will not reckon
against the normal sick leave limits.
7.4 A member of staff who resumes work
after maternity leave is entitled to have
the same job and the same terms and
conditions as if she had not been absent.
8.1 A member of staff not entitled to paid
leave of absence retains her contractual
rights and benefits, except remuneration,
during the first 14 weeks of leave. This
means that annual leave will continue to
accrue. The period of absence only accrues
for pension purposes if in receipt of Statu­
tory Maternity Pay.
C — Provisions of the Equal Opportunities
Commission Staff Handbook
8. In the order for reference, the Industrial
Tribunal states that the parties agree that
Annex 4 to the Staff Handbook 6 forms part
of the applicants' contract of employment. So
far as is relevant here, the manual provides as
follows:
4.1.9 Effect on Annual Leave of Leave
Without Pay
Any leave taken without pay (for
example unpaid sick, special, or mater­
nity leave) reduces the annual leave
entitlement for that year by a propor­
tion of the amount of unpaid leave
taken: for example, one month's unpaid
leave reduces annual leave entitlement
for that year by 1/12.
4.1.11 Sick Leave and Annual Leave
Annual leave is not taken instead of
sick leave. Staff who fall ill or are
injured during annual leave to the
extent that they are unfit to work
should inform their line manager as
6 — Annex 4 governs types of leave available to EOC employees,
namely: Annual Leave, Public and Privilege Leave, Sick Leave,
Medical Appointments, Special Leave and Maternity Leave.
I - 6412
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
soon as possible, and submit either a
self-certificate or a doctor's note
(according to the duration of sick leave)
as soon as possible after that. The
period of absence covered by the note
will then count as sick leave.
4.3.4 Sick Pay
Salary is paid in full for all sick leave of
up to six months' total duration in any
twelve-month period. Thereafter
half-pay continues up to a total of twelve
months' paid sick leave in four years.
Once entitlement to full sick pay and
half sick pay is exhausted further sick
leave will be unpaid; or sick pay may be
given at pension rate, equivalent to the
amount to which the employee would
have been entitled had they been retired
prematurely on ill-health grounds.
4.3.5 Statutory Sick Pay
All employers are required by law to
pay Statutory Sick Pay for any period
of sick leave totalling up to 28 weeks
provided that there are four or more
consecutive days on which an employee
is unable to work and provided certain
other State benefits are not being paid.
SSP rates are generally less than the
EOC's own sick pay provisions and
therefore the EOC normally fulfils its
legal requirements in respect of SSP by
virtue of the sick pay arrangements
described in 4.3.4. ...
4.3.6 Adjustments to pay: sickness benefits
If entitlement to Statutory Sick Pay is
exhausted in a particular case, the
employee is informed by Personnel,
who will forward medical certificates
covering continuing absence to their
Department of Health and Social Secu­
rity (DHSS) office so that State benefits
can be claimed. Any State benefits that
are due will be paid by the DHSS. The
total of sick pay and State benefits must
not exceed normal pay, and sick pay
will be adjusted to avoid this happening.
I - 6413
OPINION OF MR RUIZ-JARABO — CASE C-411/96
III — The preliminary questions
9. In order to resolve the disputes before it,
the Industrial Tribunal, Manchester, seeks a
preliminary ruling from the Court of Justice
on the following questions, the wording of
which was proposed by the parties:
'In circumstances such as those of the present
cases, do any of the following matters infringe
the prohibition of unfair and/or unfavourable
treatment of women because of pregnancy,
childbirth, maternity and/or sickness in rela­
tion thereto under EC law (in particular
Article 119 of the Treaty of Rome and/or
Council Directive 75/117/EEC 7 and/or
Council Directive 76/207/EEC 8 and/or
Council Directive 92/85/EEC):
(1) A condition that maternity pay, beyond
the Statutory Maternity Pay, is paid only
if the woman states that she intends to
return to work and agrees to be liable to
repay such maternity pay if she does not
return to work for one month on the
conclusion of maternity leave.
(2) A condition that where a woman, who is
absent on paid sick leave with a pregnancy-
related illness, gives birth during such
absence, her maternity leave may be back­
dated to the later date of either six weeks
before the expected week of childbirth or
when the sickness leave began.
(3) A prohibition on a woman, who is unfit
for work for any reason whilst on mater­
nity leave, from taking paid sick leave,
unless she elects to return to work and
terminate her maternity leave.
(4) A condition limiting the time during which
annual leave accrues to the statutory min­
imum period of 14 weeks maternity leave
and accordingly excluding any other
period of maternity leave.
(5) A condition limiting the time in which
pensionable service accrues during mater-
7 — Council Directive 75/117/EEC of 10 February 1975 on the
approximation of the laws of the Member States relating to
the application of the principle of equal pay for men and
women (OJ 1975 L 45, p. 19).
8 — Council Directive 76/207/EEC of 9 February 1976 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 (OJ 1976
L 39, p. 39).
I - 6414
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
nity leave to when the woman is in receipt
of contractual or Statutory Maternity Pay
and accordingly excluding any period of
unpaid maternity leave.'
IV — The applicable Community provisions
10. Article 119 of the Treaty provides as fol­
lows:
'Each Member State shall during the first stage
ensure and subsequently maintain the appli­
cation of the principle that men and women
should receive equal pay for equal work.
For the purpose of this article, "pay" means
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.
Equal pay without discrimination based on
sex means:
(a) that pay for the same work at piece rates
shall be calculated on the basis of the same
unit of measurement.
(b) that pay for work at time rates shall be
the same for the same job.'
11. Directive 75/117 provides, so far as is rel­
evant here:
Article 1
'The principle of equal pay for men and
women outlined in Article 119 of the Treaty,
hereinafter "principle of equal pay", means,
for the same work or for work to which equal
value is attributed, the elimination of all dis­
crimination on grounds of sex with regard to
all aspects and conditions of remuneration.
…'
I - 6415
OPINION OF MR RUIZ-JARABO — CASE C-411/96
Article 3
'Member States shall abolish all discrimina­
tion between men and women arising from
laws, regulations or administrative provisions
which is contrary to the principles of equal
pay.'
Article 4
'Member States shall take the necessary mea­
sures to ensure that provisions appearing in
collective agreements, wage scales, wages
agreements or individual contracts of employ­
ment which are contrary to the principle of
equal pay shall be, or may be declared, null
and void or may be amended.'
12. For its part, Directive 76/207 provides:
Article 1
'1 . The purpose of this directive is 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 ... this principle is here­
inafter referred to as "the principle of equal
treatment".
y
Article 2
'1 . For the purposes of the following provi­
sions, 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.
I - 6416
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
Article 5
'1 . Application of the principle of equal treat­
ment with regard to working conditions,
including the conditions governing dismissal,
means that men and women shall be guaran­
teed the same conditions without discrimina­
tion 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 under­
takings or in rules governing the inde­
pendent occupations and professions shall
be, or may be -declared, null and void or
may be amended;
...'
13. Article 6 of Directive 86/378 provides:
'1 . Provisions contrary to the principle of
equal treatment shall include those based on
sex, either directly or indirectly, in particular
by reference to marital or family status, for:
(g) suspending the retention or acquisition of
rights during periods of maternity leave
or leave for family reasons which are
granted by law or agreement and are paid
by the employer;
14. Finally, Article 8 of Directive 92/85 pro­
vides with regard to maternity leave:
'1 . Member States shall take the necessary
measures to ensure that workers within the
meaning of Article 2 [who are pregnant, have
I-6417
OPINION OF MR RUIZ-JARABO — CASE C-411/96
recently given birth or are breast-feeding] are
entitled to a continuous period of maternity
leave of at least 14 weeks allocated before
and/or after confinement in accordance with
national legislation and/or practice.
2. The maternity leave stipulated in para­
graph 1 must include compulsory maternity
leave of at least two weeks allocated before
and/or after confinement in accordance with
national legislation and/or practice.'
As regards rights under employment con­
tracts, Article 11 provides:
'In order to guarantee workers within the
meaning of Article 2 the exercise of their
health and safety protection rights as recog­
nised in this article, it shall be provided that:
2. In the case referred to in Article 8 [mater­
nity leave], the following must be ensured:
(a) the rights connected with the employ­
ment contract of workers within the
meaning of Article 2, other than those
referred to in point (b) below;
(b) maintenance of a payment to, and/or
entitlement to an adequate allowance for,
workers within the meaning of Article 2.
3. The allowance referred to in point 2(b)
shall 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 con­
nected with her state of health, subject to any
ceiling laid down under national legislation.
4. Member States may make entitlement to
pay or the allowance referred to in points 1
and 2(b) conditional upon the worker con­
cerned fulfilling the conditions of eligibility
for such benefits laid down under national
legislation.
These conditions may under no circumstances
provide for periods of previous employment
in excess of twelve months immediately prior
to the presumed date of confinement.'
I-6418
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
V — Observations submitted to the Court
of Justice
15. Written observations have been submitted
in these proceedings, under Article 20 of the
EC Statute of the Court of Justice, by the
applicants in the main proceedings, jointly,
the EOC, the Governments of the United
Kingdom and Ireland and the Commission.
The Austrian Government also attended the
hearing to present oral observations.
16. The applicants claim that the obligation
which the EOC Maternity Scheme imposes
on pregnant women in order to receive full
pay during maternity leave, demanding repay­
ment of the difference between that amount
and Statutory Maternity Pay if they do not
return to the work at the end of that period,
constitutes discrimination in relation to pay
on account of pregnancy, contrary to Article
119 of the Treaty. A commitment of that kind
is not imposed on workers as a precondition
for receiving full pay in cases of absence on
other grounds. They also consider that the
obligation imposed on a woman who is unfit
for work on account of illness to commence
paid maternity leave rather than remaining on
sick leave when she reaches the sixth week
prior to the expected week of confinement
constitutes either discrimination in relation to
pay or discrimination in relation to working
conditions, contrary to Article 5 of Directive
76/207.
In their opinion, it is also discriminatory and
thereby contrary to Community law to refuse
to permit a woman who falls ill after mater­
nity leave has commenced to take paid sick
leave. In such circumstances an employee who
is unfit for work is denied the right, on
account of her pregnancy or the fact that she
has recently given birth, from exercising her
contractual right to take sick leave, on full
pay, and she is required to take her maternity
leave, at the end of which she must repay part
of her remuneration if she does not return to
work.
Similarly, they consider that the fact of dis­
regarding, for the purposes of accruing pen­
sion rights under the occupational scheme
financed entirely by the employer, periods of
leave of absence or unpaid leave, including
unpaid maternity leave, constitutes indirect
discrimination against women. They consider
that the condition under which only paid ser­
vice constitutes reckonable service for the
purposes of accruing pension rights appears
neutral at first sight but is, in reality, a condi­
tion which adversely affects women, since a
substantially higher proportion of women
than of men take leave of absence or unpaid
leave, only women being able to take such
leave of absence after maternity leave. For the
same reason, they submit that the fact that
I-6419
OPINION OF MR RUE-JARABO — CASE C-411/96
any leave of absence or unpaid leave taken
brings about a reduction, in the year in ques­
tion, of the period of annual leave entitlement
proportional to the duration of the unpaid
leave constitutes discrimination against
women.
17. The respondent considers it wrong to
equate any condition of employment appli­
cable to pregnancy or maternity with direct
discrimination on grounds of sex, contrary to
Community law, since to do so is incompat­
ible with the refusal of the Court of Justice to
compare pregnancy to a pathological condi­
tion. In its view it is necessary for the Court
to clarify the circumstances in which different
treatment on grounds of pregnancy consti­
tutes discrimination contrary to Community
law and, in particular, to indicate the correct
test to be applied to establish where discrimi­
nation exists under the various applicable
Community provisions. In its view, if the
correct approach is to treat pregnancy and
maternity as situations requiring protection
for a specified period, which cannot be equated
with other absences from work, it will be
necessary to ascertain where that period is to
begin and end. In the absence of specific leg­
islation and in application of the principle of
subsidiarity, the EOC submits that determi­
nation of the commencing and ending date of
the protected period and the possibility of
those dates being brought forward in certain
circumstances are matters to be determined in
the employment contract.
18. The United Kingdom states, first, that in
the main proceedings the issue is the compat­
ibility with Community law of the contrac­
tual scheme drawn up by a particular
employer, which is partially based upon pro­
visions of national law which implemented
EC measures and which partially represents
particular contractual arrangements between
employer and employee, which go beyond
the minimum protection for workers guaran­
teed by Directive 92/85. It goes on to say that
the principle of equal pay for men and women
must be interpreted in the light of the provi­
sions designed to protect women who are
pregnant or who have recently given birth,
contained in Directive 92/85, and maintains
that the measures approved in each Member
State in implementation of that directive must
be regarded as an indivisible 'package' of
minimum rights, which include maternity
leave, pay, protection against dismissal during
pregnancy and maintenance of employment
rights. It follows that an employee cannot be
allowed to choose from among the rights in
that package those which she sees as most
advantageous, such as maternity leave, and
seek to disapply other provisions in that
package, which seem less favourable to her,
such as the fact that the pay she receives in
that period is less than full pay.
It concludes that the Community legislation
should be interpreted as not precluding the
application to employees of the disputed pro­
visions contained in the EOC maternity
scheme.
I - 6420
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
19. Ireland considers that Directive 92/85,
adopted to protect the health and safety of
pregnant workers and to uphold their employ­
ment rights, contains the main provisions
governing maternity in the case of working
women, except as regards circumstances not
covered by the directive, in which case it is
necessary to rely on other provisions of Com­
munity law, in particular Directive 75/117 or
Directive 76/207. It considers, however, that
in this case the answer to the preliminary
questions is to be found in Directive 92/85,
the provisions of which do not preclude the
application of the disputed provisions to
female employees of the EOC.
20. With respect to the first question, the
Commission considers that the disputed stipu­
lations, in so far as they grant employees the
right to receive full pay whilst on maternity
leave of 14weeks' duration, conform to Direc­
tive 92/85. However, under those same stipu­
lations, if the employee does not return to
work for at least one month she must repay
the difference between what she received and
the amount of the Statutory Maternity Pay.
To the extent to which that provision means
that a woman who does not return to work
fails to receive, during maternity leave, income
equivalent to what she would have received if
she had been absent from work on account of
illness, the Commission considers it incom­
patible with Directive 92/85.
It suggests that the second and third ques­
tions be considered together, since both deal
with situations in which maternity leave partly
coincides with unfitness for work on grounds
of illness, and that they are governed by the
principle that an employee cannot be in both
sets of circumstances at the same time. That
appears to the Commission to be a perfectly
legitimate rule, provided that its application
does not mean that the employee is deprived
of her 'physical' and legal right to a con­
tinuous and protected period of at least 14
weeks' maternity leave. It would be contrary
to the spirit of Directive 92/85 for an employee
to be compelled to give up her maternity leave
in order to be able to take sick leave.
The Commission also suggests a combined
answer to the fourth and fifth questions, since
both deal with the maintenance of rights
under the employment contract during a wom­
an's absence on account of maternity. The
Commission considers that the right to annual
leave and pension rights must continue to
accrue in the maternity leave period pre­
scribed by Article 8 of Directive 92/85. How­
ever, periods of leave to care for a child, which
exceed the length provided for by that article,
do not enjoy protection and it would not
therefore be incompatible with that directive
for the right to annual leave and pension
rights not to accrue during those periods.
I - 6421
OPINION OF MR RUIZ-JARABO — CASE C-411/96
VI — The jurisdiction of the Court of Justice
to answer the questions submitted by the
Industrial Tribunal
21. In the same way as the Commission in its
written observations, I too have wondered
whether the Court of Justice has jurisdiction
to answer the questions. At first sight, it
would not appear particularly useful to inter­
pret Community provisions laying down the
principle of equal pay and the principle of
equal treatment for men and women, and the
provisions of Directive 92/85 relating tomater­
nity leave and the maintenance of employ­
ment rights during that period, when the dis­
putes pending before the national court,
although certainly relating to the compat­
ibility with Community law of certain clauses
of the applicants' employment contracts, do
not derive from the actual application of those
clauses to them.
22. In that connection, according to settled
case-law, by virtue of the cooperation between
the Court of Justice and the national courts
provided for by Article 177 of the Treaty it is
solely for the national court before which the
dispute has been brought, and which must
assume responsibility for the subsequent judi­
cial decision, to determine in the light of the
particular circumstances of each case both the
need for a preliminary ruling in order to
enable it to deliver judgment and the relevance
of the questions which it submits to the
Court. Consequently, where the questions
submitted by the national court concern the
interpretation of a provision of Community
law, the Court of Justice is, in principle,
bound to give a ruling. 9
23. But the Court has also taken the view
that in order to determine whether it has
jurisdiction, it is a matter for the Court of
Justice to examine the conditions in which
the case has been referred to it by the national
court. The spirit of cooperation which must
prevail in the prehminary-ruling procedure
requires the national court to have regard to
the function entrusted to the Court of Justice,
which is to assist in the administration of jus­
tice in the Member States and not to deliver
advisory opinions on general or hypothetical
questions. 10
24. And it also said that a request for a pre­
liminary ruling from a national court may be
rejected only if it is quite obvious that the
interpretation of Community law sought by
that court bears no relation to the actual
nature of the case or the subject-matter of the
main action.11
25. However, it is beyond doubt that the dis­
putes in which the Industrial Tribunal must
adjudicate are not hypothetical. They are real
disputes, in which the applicants seek a dec­
laration that certain clauses of their employ­
ment contracts are contrary to Community
9 — Case C-125/94Aprile v Amministrazione delle Finanze dello
Stato [1995] ECR I-2919, paragraphs 16 and 17.
10 — Case C-83/91 Metli ke v ADV/ORGA [1992] ECR I-4871,
paragraph 25.
11 — Case C-143/93 Furlanii v ANAS and Itinera [1995] ECR
I-3633, paragraph 12.
I - 6422
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
law and therefore void, in order to preclude
their application to them in the future, should
the case arise. Since national law allows them
to bring such actions, I am of the opinion
that the questions submitted are objectively
necessary in order to resolve the disputes and
that the Court of Justice must answer the
questions. 12
VII — Consideration of the preliminary ques­
tions
26. To date, the Court has given several judg­
ments on the application of the principle of
equal pay and the principle of equal treat­
ment for men and women to cases involving
the employment rights of workers who are
pregnant or who have recently given birth.
Examples are Gillespie, 13dealing with pay
during maternity leave;Dekker, 14 concerning
a refusal to appoint a pregnant woman;
Hertz, 15concerning the dismissal of a woman
on account of incapacity for work which
commenced after maternity leave and was
attributable to an illness caused by the con­
finement; Habermann-Beltermann, 16 con­
cerning the possibility of declaring a contract
void or capable of being avoided in conse­
quence of the legal prohibition of night work
by pregnant women; Webb, 17 concerning the
non-comparability of the situation of a preg­
nant woman who is unable to carry out the
task for which she was recruited with that of
a man suffering the same incapacity for med­
ical or other reasons; and Larsson, 18con­
cerning the possibility of taking into account,
for the purposes of dismissal, of absence due
to a woman's incapacity for work as a result
of pregnancy, before the start of maternity
leave. An Opinion has been delivered but
judgment is still awaited in the Thibault case 19
concerning the possibility of a woman not
being given an annual assessment report
because she was absent from work on mater­
nity leave; the Høj Pedersen case, 20 con­
cerning the right to equal pay when a wom­
an's pregnancy renders her unfit for work;
and the Brown case 21 concerning the possi­
bility of dismissal of a pregnant worker
because her absence due to unfitness for work
attributable to pregnancy exceeded the period
which, under the employment contract, ren­
dered workers liable to dismissal on grounds
of illness.
A common denominator in all those cases is
that it was or is necessary for them to be
12 — Case C-415/93 Union Royale Belge de Société de Football
and Others v Bosman and Others [1995] ECR I-4921, para­
graph 65.
13 — Case C-342/93 Gillespie [1996] ECR I-475.
14 — Case C-177/88 Dekker [1990] ECR I-3941.
15 — Case C-179/88 Handels-og Kontorfunktionærernes Forbund
i Danmark [1990] I-3979.
16 — Case C-421/92 Habermann-Beltermann [1994] ECR I-1657.
17 — Case C-32/93 Webb [1994] ECR I-3567.
18 — Case C-400/95 Larsson [1997] ECR I-2757.
19 — Case C-136/95 Thibault. The Opinion was delivered on 9
January 1997.
20 — Case C-66/96 Hej Pedersen. The Opinion was delivered on
10 July 1997.
21 — Case C-394/96 Brown. The Opinion was delivered on 5
February 1998.
I - 6423
OPINION OF MR RUIZ-JARABO — CASE C-411/96
resolved by reference to an interpretation of
the Community legislation which was in force
at the material time, namely either Article 119
of the Treaty and Directive 75/117, in the
case of the principle of equal pay; or Direc­
tive 76/207 in the case of equal treatment
regarding access to employment, training and
promotion, and working conditions.
27. In order to deal with the present case,
however, recourse may now be had to Direc­
tive 92/85, since the wording of the clauses
which the applicants in the main proceedings
seek to have declared void is the wording
adopted in order to bring them into line with
the text of that directive.
Since it is an individual directive which, as
indicated by its very title, purports to apply
measures to encourage improvements in the
safety and health at work of pregnant workers
and workers who have recendy given birth or
are breast-feeding, I consider that, in order to
answer the preliminary questions, it will be
necessary to rely primarily on the provisions
of that directive and, on a subsidiary basis, on
the remainder of the Community legislation
of more general scope.
28. Before examining the various questions, I
must point out that, in order to answer them,
it is necessary to reformulate them since, oth­
erwise, in view of the complexity and origi­
nality of the national legislation on which the
disputed clauses are partly based, the termi­
nological problems associated with the various
concepts would be insoluble, and the answers
might not be helpful to the national court.
I shall therefore reformulate the questions,
relying for that purpose, in view of the lack
of detail in the order for reference regarding
the factual and legal background to the dis­
putes, upon the documents produced by the
national court and by the parties which have
submitted observations in these proceedings,
and on the replies to the written questions
put by the Court to the respondent and to
the United Kingdom Government, in order
to clarify the scope of some of the disputed
clauses.
(1) The first question
29. I infer that by this question the national
court wishes to ascertain whether the Com­
munity law provisions which it cites mean
that an employer, who is prepared, for the
benefit of his employees, to go beyond the
legal provisions applicable to pay during
maternity leave, is precluded from imposing,
as a quid pro quo, by means of clauses like
those of the EOC Maternity Scheme, the
I - 6424
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
requirement that the employees declare, before
commencing maternity leave, that they intend
returning to work and give an undertaking to
repay the difference between the full salary
paid to them and the Statutory Maternity Pay
that they would have received had they not
given an undertaking to return to work, in
the event of their failing to come back to
work for at least one month.
30. Among the rights connected with the
employment contract which must be guaran­
teed to women, under Article 11(2)(b) of
Directive 92/85, is the maintenance of a pay­
ment and/or entitlement to an adequate allow­
ance during the period of maternity leave, the
minimum period of which is to be 14 con­
tinuous weeks, of which two are compulsory.
Under Article 11(3), the allowance is deemed
to be adequate if it guarantees income at least
equivalent to that which the worker con­
cerned 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.
31. Under the EOC maternity scheme,
employees who fulfil the stricter requirements
regarding length of service and type of con­
tract are entitled to continue to receive full
pay for three months and one week. If their
length of service is less, they will receive
Statutory Maternity Pay, which consists of
nine-tenths of normal pay over a given period,
to be paid for the first six weeks, and a fixed
amount which at present is UKL 54.55 per
week for the remainder of the period. If she
does not fulfil the conditions for entitlement
to the latter allowance, the worker may apply
for the Maternity Allowance, which amounts
to UKL 54.55 per week.
In addition, the EOC Staff Handbook pro­
vides, with respect to remuneration for an
employee who is unfit for work through ill­
ness, that he will be entitled to full pay for a
period not exceeding the first six months,
within a period of 12 months. Thereafter, he
will receive half-pay for a maximum of 12
months within a period of four years. If inca­
pacity continues, in principle nothing will be
payable by the employer and the employee
will then be able to receive certain State ben­
efits.
The issue is whether, as the applicants in the
main proceedings and the Commission con­
tend, Directive 92/85 precludes the EOC
Maternity Scheme from requiring employees
to give an undertaking to return to work after
maternity leave in order to receive full pay
and to refund the difference between that
amount and Statutory Maternity Pay if they
do not return, on the ground that such a
requirement means that a woman in those
I - 6425
OPINION OF MR RUIZ-JARABO — CASE C-411/96
circumstances will not have received income
equivalent to that to which she would have
been entitled if the break in her activities had
been attributable to an illness. In the Com­
mission's view, Article 11(2)(b) and (3) of
Directive 92/85 must be construed as meaning
that the term 'adequate', used in the text in
relation only to the allowance, must also
apply to remuneration, so that it will be nec­
essary to consider the question of adequacy
in each case, having regard to the legitimate
expectations of the particular employee, and
drawing a comparison with the amount she
would receive if on sick leave.
32. I do not agree with that interpretation,
for the following reasons. First, because the
text of Article 11(2)(b) requires maintenance
of a payment, not of pay. 22 It is thus accepted
at the outset that the income received by a
worker on maternity leave does not coincide
with the earnings she receives while at work
or in any other circumstances. Indeed, it
would be difficult to pay her a higher sum
when she was not working than she would
receive if working. I must therefore conclude
that the directive does not stand in the way
of remuneration being, during maternity leave,
lower than the wages received by the worker
whilst at work or in any other circumstances.
33. Secondly, because the distinction between
pay and allowances is linked with the source
of the income payable to the woman. Thus,
with regard to pay, reference must be made to
Article 119 of the Treaty which defines it
broadly as: '... 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'. That
definition has been completed by the case-law
of this Court which, since 1971, has included
within that concept 'immediate or future'
consideration 23 and, in 1990, it added that
the benefits paid by an employer to a worker
in respect of his employment are to be clas­
sified as pay 'whether they are paid under a
contract of employment, by virtue of legisla­
tive provisions or on a voluntary basis'. 24
By a process of elimination, the allowance
will, necessarily, be any income of a public or
private nature received by a woman whilst on
maternity leave and not paid by the employer
in respect of her employment. That defini­
tion, it seems tome, will inmost cases include
amounts paid by social security authorities,
22 — Emphasis added.
23 — Case 80/70 Defrenne v Belgium [1971] ECR 445, paragraph
6.
24 — Case C-262/88 Barber [1990] ECR I-1889, paragraph 20.
I - 6426
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
either directly or through management agen­
cies.
In my opinion, the terminology used for the
two concepts supports that interpretation.
Where the provision refers to 'a payment', it
is accompanied by the word 'maintenance'.
This means that, either by operation of law
or by virtue of a collective agreement or indi­
vidual contract, it will be the employer who
must ensure that the employee receives, whilst
on maternity leave and in respect of the
employment relationship, a given level of
income which, as I pointed out earlier, does
not necessarily have to coincide with full pay.
On the other hand, where the provision refers
to 'an ... allowance', it is accompanied by the
words 'entitlement to', which brings it closer
to the sphere of social security protection and
distances it somewhat from the concept of
pay.
34. The distinction drawn by the provision
between the 'maintenance of a payment' and
'entitlement to an ... allowance' is helpful in
considering whether the word 'adequate' refers
only to the allowance or must be deemed to
extend to the payment, as the Commission
submits. Given that the consideration paid by
the employer to the worker in respect of her
employment is, as a general rule, greater than
the amount of the benefits paid by the social
security authorities, for the simple reason that
such benefits are usually based on contribu­
tions and consists, to a greater or lesser extent,
of a percentage of income, it must be con­
cluded that, where Directive 92/85 indicates
that the allowance will be deemed adequate if
it guarantees income at least equivalent to
that which the worker 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 by national legislation,
it is referring to allowances paid by national
social security schemes and not to pay from
the employer in respect of employment.
Clearly the latter must also be adequate, but
I do not believe that, in practice, an employer,
whether public or private, who has to nego­
tiate working conditions with his employees,
individually or collectively, will be able to
pay less to his employees during maternity
leave than they would receive from the social
security authorities by way of sickness ben­
efits.
That interpretation is supported by the last
recital in the preamble to Directive 92/85, in
which it is stated '... the concept of an adequate
allowance in the case of maternity leave must
be regarded as a technical point of reference
with a view to fixing the minimum level of
protection and should in no circumstances be
interpreted as suggesting an analogy between
pregnancy and illness'. If the purpose of an
adequate allowance is to set the minimum
level of protection, I do not see how it could
mean that, in each specific case, a woman will
be entitled to receive the same income during
maternity leave as she receives when unfit for
work through illness.
I - 6427
OPINION OF MR RUIZ-JARABO — CASE C-411/96
35. Thirdly, I do not agree with the interpre­
tation advocated by the Commission because
Article 11(2)(b) of Directive 92/85 contem­
plates the possibility of guaranteeing at the
same time 'maintenance of a payment' and
'entitlement to an adequate allowance'. If that
meant that both of them had to be adequate
within the meaning of the directive — by
guaranteeing income at least equivalent to that
which the worker would receive in the event
of a break in her activities on grounds of
health — the result would be that she could
be entitled to receive from her employer the
remuneration which the latter is required to
pay his employees in the event of incapacity
for work and, in addition, the allowance pro­
vided by the social security scheme by way of
sickness benefit. On the contrary, I believe
that the only possibility of both being pay­
able arises where the social security benefit,
which normally represents a 'minimum', may
be supplemented by the employer, either by
operation of law or under an agreement with
his employees.
36. Finally, there is yet another reason for
which the interpretation proposed by the
Commission seems to me unacceptable. On
examining the system set up by the respon­
dent to pay its employees whilst they are unfit
for work, I note that there are three possible
situations: in the first, for six months within
a 12-month period, they receive full pay.
Thereafter, they are paid only half pay for a
maximum of 12 months within a period of
four years. Finally, payment from the
employer to a worker who is unfit for work
ceases. The Commission asserts that the ade­
quacy of the income received during mater­
nity leave will depend on the legitimate expec­
tations of the employee concerned regarding
level of pay when she is unfit for work. But,
what will be the legitimate expectations of an
employee who is already in the second stage,
that is to say when she is receiving only half
pay? And I need not speculate on the expec­
tations of a person whose incapacity for work
has gone on to the point that she no longer
receives any pay at all.
37. It is clear from the documents before the
Court, first, that the national legislation
requires employers to pay employees who
fulfil certain conditions regarding length of
service and level of earnings Statutory Mater­
nity Pay, consisting of nine-tenths of their
ordinary wages for the first six weeks of
maternity leave and a fixed amount which at
present is UKL 54.55 per week for the
remainder of the period. The latter amount
coincides with the Maternity Allowance and
with the statutory sickness benefit paid by
the employer for a maximum of 28 weeks.
It has also been shown that the respondent
improves on those conditions for the benefit
I - 6428
BOYLE AND OTHERS V EQUAL OPPORTUNITIES COMMISSION
of its employees by paying them the differ­
ence between Statutory Maternity Pay and
full pay for 14 week's maternity leave,
requiring them in return to declare, before
starting leave, that they intend returning to
work and to actually return for at least one
month.
38. In the light of the interpretation which I
propose for Article 11 (2)(b) of Directive 92/85,
I do not believe that its provisions mean that
an employer, who is prepared, for the benefit
of his employees, to go beyond the legal pro­
visions applicable to pay during maternity
leave, is precluded from imposing, as a quid
pro quo, by means of clauses like those of the
EOC Maternity Scheme, the requirement that
the employees declare, before commencing
maternity leave, that they intend returning to
work and give an undertaking to repay the
difference between the full salary paid to them
and the Statutory Maternity Pay that they
would have received had they not given an
undertaking to return to work, in the event
of their failing to come back to work for at
least one month.
39. The applicants in the main proceedings
also allege discrimination regarding equal pay
for men and women stemming from the fact
that, to be entitled to receive full pay whilst
on maternity leave, they must undertake to
return to work and, if they fail to do so, they
are obliged to repay the difference between
that amount and the Statutory Maternity Pay,
since that condition is not imposed on workers
in general as a precondition for receiving full
pay whilst they are unfit for work, nor are
such workers required to repay the difference
if they do not resume work when declared fit
to do so.
40. According to settled case-law of this
Court, 'discrimination can arise only through
the application of different rules to compa­
rable situations or the application of the same
rule to different situations'. 25 Now, in
Gillespie, in which it was sought to clarify
whether the principle of equal pay contained
in Article 119 of the Treaty and developed in
Directive 75/117 made it compulsory to main­
tain full pay for workers on maternity leave,
the Court of Justice held that women taking
maternity leave provided for by national leg­
islation are in a special position which requires
them to be afforded special protection, but
which is not comparable either with that of a
man or with that of a woman actually at work,
reaching the conclusion that neither Article
119 of the Treaty nor Directive 75/117 impose
25 — Case C-279/93 Schumacher [1995] ECR I-225, paragraph 30.
I - 6429
OPINION OF MR RUIZ-JARABO — CASE C-411/96
the obligation that workers should receive
rull pay during maternity leave. 26
In response to the question whether Com­
munity law laid down specific criteria — and,
if so, what — for determining the amount of
benefit to be paid to workers on maternity
leave, the Court answered '[n]or did those
provisions [Article 119 of the Treaty and
Article 1 of Directive 75/117] lay down any
specific criteria for determining the amount
of benefit to be paid to them during that
period. The amount payable could not, how­
ever, be so lowas to undermine the purpose
of maternity leave, namely the protection of
women before and after giving birth. In order
to assess the adequacy of the amount payable
from that point of view, the national court
must take account, not only of the length of
maternity leave, but also of the other forms
of social protection afforded by national law
in the case of justified absence from work.
There is nothing, however, to suggest that in
the main proceedings the amount of the ben­
efit granted was such as to undermine the
objective of protecting maternity leave'. 27 In
Gillespie, the workers had received the fol­
lowing benefits during maternity leave, under
their collective agreement: their full weekly
pay for the first four weeks, nine-tenths of
their full pay for the next two weeks and,
finally, half their full pay for 12weeks, such
conditions being more advantageous than
those laid down by the general applicable leg­
islation, which provided for the payment of
nine-tenths of full weekly pay for six weeks
and then a flat-rate allowance of UKL 47.95
per week for the next 12 weeks.
41. I would also add that the situation of a
man rendered unfit for work by illness and
that of a woman taking maternity leave are
certainly not comparable in any way. The
man, had he not been ill, would be working
and, on being declared fit, would have to
return to work, whereas maternity leave is
granted to a woman in order to safeguard her
biological state during and after pregnancy
and to protect the special relationship between
mother and child in the period following
confinement. 28 Moreover, as I stated in the
Opinion which I delivered in the Høj Ped­
ersen case, 29 during maternity leave a woman
is not only released from work but also from
any other obligation under her employment
contract, whereas a manor woman declared
unfit for work is required to undergo the
therapeutical treatment prescribed by the
doctor in order to assist recovery.
26 — Cited in footnote 13 above, paragraphs 17 and 20.
27 — Ibid., paragraph 20.
28 — Case 184/83 Hoffmann [1984] ECR 3047, paragraph 25.
29 — Cited in footnote 20 above.
I - 6430
BOYLE AND OTHERS V EQUAL OPPORTUNITIES COMMISSION
42. For the reasons which I have just set out
I consider that Article 119 of the Treaty and
Directive 75/117 likewise do not mean that
an employer, who is prepared, for the benefit
of his employees, to go beyond the legal pro­
visions applicable to pay during maternity
leave, is precluded from imposing, as a quid
pro quo, by means of clauses like those of the
EOC Maternity Scheme, the requirement that
the employees declare, before commencing
maternity leave, that they intend returning to
work and give an undertaking to repay the
difference between the full salary paid to them
and the Statutory Maternity Pay that they
would have received had they not given an
undertaking to return to work, in the event
of their failing to come back to work for at
least one month.
(2) The second question
43. By this question, the national court
appears to be asking whether, under the pro­
visions of Community law which it cites, it is
not permissible, by recourse to clauses like
those forming part of the respondent's Mater­
nity Scheme, to provide that, where a worker
has indicated that she wishes to commence
maternity leave on any date in the six weeks
prior to the expected week of confinement
and is declared unfit for work on account of
pregnancy immediately before that date, then,
if the birth occurs whilst she is in that situa­
tion, the commencement of her maternity
leave may be backdated to the later of the fol­
lowing two dates: the beginning of the period
of sick absence or the start of the sixth week
prior to the expected week of confinement.
44. As regards the length of maternity leave,
Directive 92/85 imposes two obligations on
the Member States: the first is that workers
must be allowed a continuous period of at
least 14 weeks before and/or after the con­
finement; the second is that that period must
include compulsory maternity leave of at least
two weeks, likewise allocated before and/or
after confinement. In accordance with those
provisions, the United Kingdom gave to all
women a general right, which previously had
not existed, to take periods of maternity leave
of that duration, the same provisions being
contained in the EOC Maternity Scheme. The
compulsory maternity leave of two weeks
commences in the United Kingdom on the
day of confinement, and maternity leave may
be extended for the period necessary to sat­
isfy that obligation.
45. The applicants consider it discriminatory
for a woman who is unfit for work not to be
able to exercise her right to remain on sick
leave with full pay if her illness is attributable
to pregnancy and she gives birth whilst in
that situation.
I - 6431
OPINION OF MR RUIZ-JARABO — CASE C-411/96
46. I do not agree with that interpretation.
Before Directive 92/85 imposed on the
Member States the obligations under review
here, that is to say when the only Commu­
nity provision dealing with pregnancy and
maternity was Article 2(3) of Directive 76/207
— which did no more than authorise them to
adopt provisions to uphold women's specific
rights for those two reasons — the Court
held, in Hertz, that it is for every Member
State to fix periods of maternity leave in such
a way as to enable female workers to absent
themselves during the period in which the
disorders inherent in pregnancy and confine­
ment occur. 30
47. On the basis that the purpose of mater­
nity leave is to permit a worker, without
prejudice to her employment rights, to be
absent from work because of imminent or
recent maternity, and provided that the length
of the periods laid down by Article 8 of
Directive 92/85 is complied with, I conclude
that neither the provisions of that directive
nor those of Directive 76/207 preclude a pro­
vision like that contained in the respondent's
Maternity Scheme under which, where an
employee has indicated that she wishes to
commence maternity leave on any date in the
six weeks prior to the expected week of con­
finement and is declared unfit for work on
account of pregnancy immediately before that
date, then, if the birth occurs while she is in
that situation, the commencement of her
maternity leave may be backdated to the later
of the following two dates: the beginning of
the period of sick absence or the start of the
sixth week prior to the expected week of con­
finement.
(3) The third question
48. By this question, I believe, the national
court wishes to ascertain whether under Com­
munity law it is not permissible, by recourse
to provisions like those in the EOC Mater­
nity Scheme, to prohibit a woman who has
begun her maternity leave or is on unpaid
maternity leave from being accorded sick leave
on full pay — being entitled in the latter case
to claim only Statutory Sick Pay — and to
impose the requirement that, in order to be
granted such leave, she has stated, three weeks
in advance, her intention to return to work
on a specified day, thereby bringing to an
end, if the birth has occurred, her special
maternity leave arrangements.
49. In order to answer that question, I think
a distinction must be drawn between, on the
one hand, maternity leave properly so called,
as provided for by Directive 92/85, that is to
say, the continuous period of 14 weeks allo­
cated before and/or after confinement, during
which in any event workers' rights under their
employment contracts are safeguarded and, if
30 — Cited in footnote 15 above, paragraph 15.
I - 6432
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
appropriate, a payment to them or entitle­
ment to an adequate allowance is maintained,
that period being the one provided for both
by national legislation and by the provisions
of the EOC Maternity Scheme, and, on the
other hand, any other leave, paid or other­
wise, which the national legislature or the
employer, by granting enhanced contractual
terms, sees fit to afford to a worker who has
recently given birth. I shall consider first
maternity leave properly so called.
50. It seems to me to be entirely logical for a
woman who is on maternity leave not to be
able, at the same time, to be declared unfit for
work on account of illness. What sense would
it make, legally, if she could be regarded as
being simultaneously in both situations?
Would it be appropriate, nevertheless, to con­
clude that she can interrupt her maternity
leave, take sick leave and, on recovering, go
back to the previous situation?
51. I see a number of reasons for rejecting
that interpretation. In the first place, it must
be borne in mind that, although a period of
14 weeks' maternity leave must without fail
be provided for in the legislation of the
Member States, the internal regulations of
undertakings and in contracts of employment,
as far as the worker is concerned, apart from
the two weeks compulsory maternity leave
which, in the United Kingdom, commence
on the day of the birth, the entitlement may
be waived. Secondly, Directive 92/85 clearly
provides, in Article 8, that the maternity leave
is to comprise a continuous period of at least
14 weeks. It is not therefore possible to take
part of that period and then take the remainder
at a later stage. Thirdly, under Article 11(4) of
Directive 92/85, the maintenance of a pay­
ment and/or entidement to an adequate allow­
ance may be made conditional upon the
worker concerned fulfilling the conditions of
eligibility for such benefits under national
legislation, amongst which it is not appro­
priate to include earlier periods of work
exceeding 12 months immediately prior to
the expected date of confinement. The pos­
sibility of treating maternity leave as having
ended and being given paid sick leave will,
for a woman who falls ill after giving birth
and is not entitled to receive any income
during maternity leave, offer indubitable
advantages.
52. For those reasons, I consider that the
provisions of Directive 92/85 do not preclude
a clause like that contained in the EOC Mater­
nity Scheme under which a woman who is in
the course of her 14 weeks' maternity leave
must, provided that the two weeks of com­
pulsory leave have been completed, accept
that her special maternity leave arrangements
have definitively ceased so that she can be
granted paid sick leave.
53. As regards unpaid maternity leave, the
entitlement to and duration of which are
I - 6433
OPINION OF MR RUIZ-JARABO — CASE C-411/96
determined by reference to the conditions
fulfilled by the workers and for which remu­
neration is limited to the payment by the
employer of Statutory Maternity Pay for the
first four weeks, I do not consider that it can
be regarded as maternity leave within the
meaning of Directive 92/85. In the present
case, the workers are entitled to be absent
from work for up to 52 weeks. That period
includes the 14 weeks' maternity leave and
the remainder will be unpaid maternity leave.
The applicants consider that the clause in the
Maternity Scheme which makes receipt of full
pay, if they fall ill during the period of unpaid
leave, conditional upon their giving up their
special arrangements, discriminates against
women who find themselves in that situation.
That type of unpaid leave is a right which,
being reserved in the United Kingdom exclu­
sively for women, falls within the exception
provided for in Article 2(3) of Directive 76/207
which enables the Member States to provide
for special treatment for women, in particular
as regards pregnancy and maternity, for which
there is no parallel in the treatment accorded
to their male colleagues.
54. I consider that Community law does not
preclude the application of a clause of the
kind at issue here. Although it does provide
for different treatment as between men and
women, in that women, if they fall ill whilst
on unpaid maternity leave are not automati­
cally granted the right to sick leave on full
pay (they are entitled only to Statutory Sick
Pay), whereas male workers automatically
enjoy that right for the first six months of a
period of 12 months, it must also be recogn­
ised that the situations are different, since men
are not granted any right to unpaid parental
leave. But there is another important differ­
ence which becomes apparent when both fall
ill: to be able to claim that right, a male worker
must be at work (and I do not think that the
fact that he may fall ill whilst on annual leave
changes that assessment), whilst the woman is
on unpaid leave, during which she is relieved
of the obligation to work.
55. In those circumstances, and provided that
the two weeks' compulsory maternity leave
have been taken, I consider that none of the
provisions cited by the national court pre­
cludes recourse to stipulations of the kind
contained in the EOC Maternity Scheme
which prohibit a woman who has begun her
maternity leave or is on unpaid maternity
leave from being accorded sick leave on full
pay — being entitled in the latter case to claim
only Statutory Sick Pay — and to impose the
requirement that, in order to be granted such
leave, she has stated, three weeks in advance,
her intention to return to work on a speci­
fied day, thereby bringing to an end, if the
birth has occurred, her special maternity leave
arrangements.
I - 6434
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
(4) The fourth question
56. By this question, the national court seeks
a ruling as to whether, under the Community
law provisions which it cites, it is not permis­
sible, by recourse to a stipulation of the kind
contained in the EOC Maternity Scheme, to
limit the period for which annual leave entitle­
ment accrues to the 14 weeks' maternity leave
and to exclude such accrual whilst the woman
concerned is on leave of another kind in order
to care for a newborn child.
57. Article 11(2)(a) of Directive 92/85 requires
the Member States, whilst a worker is taking
the maternity leave provided for in Article 8,
to safeguard the rights connected with her
employment contract. There is no doubt that
the accrual of annual leave is one of the rights
connected with an employee's employment
contract. Nor is there any doubt that, for the
14-week period of maternity leave in the
United Kingdom, regardless of any right to
receive any particular income, employees are
guaranteed the accrual of annual leave.
The applicants nevertheless claim the right to
the accrual of annual leave whilst they are on
unpaid maternity leave, which is granted to
them if they fulfil certain requirements
regarding length of service.
58. As I stated earlier, Directive 92/85 merely
lays down the obligation to safeguard rights
connected with the employment contract
whilst the worker is taking the maternity leave
provided for in Article 8, that is to say for 14
weeks. For the remaining time, up to the 52
weeks representing the maximum period for
which an employee of the EOC may be
absent from work on account of pregnancy
and maternity, she will be in the special situ­
ation which I described when considering
unpaid maternity leave in connection with
the answer to be given to the third question.
For the reasons which I put forward at that
time, I consider that Directive 92/85 does not
impose the obligation to safeguard an employ­
ee's rights under her employment contract,
such as the accrual of annual leave, beyond
the 14 weeks' maternity leave provided for in
Article 8.
59. The applicants maintain that that clause,
which is ostensibly neutral, involves indirect
discrimination, since, during their working
life, it is women who most frequently take
unpaid leave, since they are allowed to take
unpaid maternity leave.
60. Quite apart from the fact that I consider
that reserving solely to women the availability
of unpaid leave to look after a, newborn child
does not help promote equality of opportu­
nity between the sexes, since what it does in
reality is to perpetuate in society the idea that
it is women who as a matter of priority should
I - 6435
OPINION OF MR RUIZ-JARABO — CASE C-411/96
take care of the children — with all the con­
comitant adverse effects on their future careers
— I do not share the view put forward by the
applicants.
61. The Court of Justice has repeatedly held
that, to justify a finding of indirect discrimi­
nation, a provision formulated in neutral
terms, which in this case is contained in the
Staff Handbook, whereby any unpaid leave
will reduce annual leave in proportion to the
length of the leave of absence, must in fact be
detrimental to a much larger number of
women than men. 31
However, the argument that that provision
adversely affects a much larger number of
women because they more frequendy take
unpaid leave cannot succeed in the present
case since the leave taken by the women
referred to by the applicants in support of
their allegation of indirect discrimination
reflects special arrangements which have no
connection with unpaid leave taken volun­
tarily for personal reasons, which is available
to both men and women. In the first place, in
the United Kingdom only women may take
unpaid leave to look after a newborn child, of
a predetermined duration and with the right
to return to work. 32 In the second place,
unpaid leave of that kind is a protective mea­
sure covered by Article 2(3) of Directive
76/207, which is afforded to a woman because
she has recently given birth and the grant of
such leave and the rules concerning it, where
it exceeds the minimum requirements of Direc­
tive 92/85, are matters reserved exclusively to
the Member States.
62. For the foregoing reasons, I am of the
opinion that Community law does not pre­
clude the limitation, by means of stipulations
such as those of the EOC Maternity Scheme,
of the time during which annual leave accrues
to the 14 weeks' maternity leave and the
exclusion of such accrual during unpaid mater­
nity leave.
(5) The fifth question
63. By this question the national court wishes
to ascertain whether any of the provisions
which it cites precludes imposition, for the
31 — Case C-1/95 Gerner [1997] ECR I-5253, paragraph 30; Case
C-100/95 Kording [1997] ECR I-5289, paragraph 16; Case
C-444/93 Megner and Scheffel [1995] ECR I-4741, para­
graph 24; and Case C-343/92 Roks and Others [1994] ECR
I-571, paragraph 33.
32 — In Case C-200/91 Colorou [1994] ECR I-4389, the Court of
Justice stated in reply to questions from the High Court as
to whether, in the sphere of equal pay for men and women,
Article 119 of the Treaty was applicable to company pen­
sion schemes which at all times nave had members of only
one sex, that 'a worker cannot rely on Article 119 in order
to claim pay to which he could be entitled if he belonged to
the other sex in the absence, now or in the past, in the
undertaking concerned of workers of the other sex who per­
form or performed comparable work. In such a case, the
essential criterion for ascertaining that equal treatment exists
in the matter of pay, namely the performance of the same
work and receipt of the same pay, cannot be applied.'
I - 6436
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
acquisition of pension rights during mater­
nity leave, of the condition that the woman
must receive pay or Statutory Maternity Pay
from her employer, with the result that she is
prevented from acquiring pension rights if,
during maternity leave, she receives income
from funds unconnected with the employer
or if she receives no income at all, and like­
wise if she takes unpaid maternity leave.
64. I must point out once again that Article
11(2)(a) of Directive 92/85 provides that
workers must, when on maternity leave, which
is to be of at least 14 weeks' duration, have
the rights connected with their employment
contracts maintained. There is no doubt at all
that the accrual of pension rights, particularly
where, as in this case, they form part of an
occupational scheme financed entirely by the
employer, is one of the rights connected with
the worker's employment contract.
However, Clause 8.1 of the EOC Maternity
Scheme provides that where an employee is
not entitled to receive full pay during her
maternity leave, the 14 weeks' absence will be
taken into account for the purposes of the
accrual of pension rights only if she is entitled
to receive Statutory Maternity Pay.
65. Consequently, an EOC employee who
does not meet the requirements of the Mater­
nity Scheme for the employer to pay her
Statutory Maternity Pay, both in the case of
her receiving during maternity leave any of
the State benefits available in respect of mater­
nity and in the case of her receiving no income
at all, will be prevented from accruing any
pension rights under the occupational scheme
of which she is a member.
66. It is true that such a possibility appears to
be acceptable by virtue of Article 6(g) of
Directive 86/378, in so far as it provides that
provisions contrary to the principle of equal
treatment are to include those based on sex,
which suspend the retention or acquisition of
rights during periods of maternity leave or
leave for family reasons which are granted by
law or agreement and are paid by the employer.
In fact the rule in the Maternity Scheme at
issue is consistent with that provision: pen­
sion rights continue to accrue whilst pay, in
the form either of salary or of Statutory
Maternity Pay, is paid by the employer. On
the other hand, the accrual of pension rights
is interrupted when the income received by
the woman during that period is paid out of
public or private funds unconnected with the
employer or when she receives no income at
all.
67. However, despite the fact that the wording
which Directive 96/97/EC 33 laid down as the
33 — Council Directive 96/97/EC of 20 December 1996 amending
Directive 86/378/EEC on the implementation of the prin­
ciple of equal treatment for men and women in occupational
social security schemes (OJ 1997 L 46, p. 20).
I - 6437
OPINION OF MR RUIZ-JARABO — CASE C-411/96
new version of that article has not changed
that provision, I consider that Article 11(2)(a)
of Directive 92/85, under which workers are
to be guaranteed during maternity leave of a
continuous period of at least 14 weeks the
rights connected with their employment con­
tracts, must be interpreted as meaning that
the accrual of pension rights under an occu­
pational scheme during the 14 weeks' mater­
nity leave may not be made conditional upon
the worker's receiving, in the form of pay or
Statutory Maternity Pay, income paid by the
employer.
In my opinion, it would be contrary to the
aim pursued by Directive 92/85 if, during the
period of maternity leave for which it pro­
vides, the guarantee of one of the rights con­
nected with the employment contract, seen as
an unconditional right, could be made sub­
ject, by virtue of a provision of the kind now
under consideration, to the condition that the
woman must receive pay from her employer
during that period, when the directive itself
provides that the Member States are entitled
to make the right to pay or to an allowance
conditional upon the worker concerned ful­
filling the requirements laid down by national
legislation in order to qualify for those advan­
tages.
68. On the other hand, on the basis of the
reasons set out in relation to the third and
fourth questions regarding unpaid maternity
leave, I consider that Community law does
not preclude a woman from being denied the
possibility of accruing pension rights under
an occupational scheme whilst she is on unpaid
leave of that kind.
69. In the light of the reasons which I have
just expounded, I am of the opinion that
Article 11(2)(a) of Directive 92/85, in con­
junction with the provisions of Article 8
thereof, precludes making the accrual of pen­
sion rights under an occupational scheme
during the 14 weeks' maternity leave condi­
tional upon the worker receiving, in the form
of wages or Statutory Maternity Pay, income
paid by her employer.
VIII — Conclusion
70. In view of the foregoing considerations, I propose that the following answers be
given to the questions submitted by the Industrial Tribunal, Manchester:
(1) In circumstances such as those of the present case, neither Article 119 of the
Treaty of Rome, nor Council Directive 75/117/EEC of 10 February 1975 on
the approximation of the laws of the Member States relating to the application
I - 6438
BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION
of the principle of equal pay for men and women, nor Council Directive
76/207/EEC on the implementation of the principle of equal treatment for men
and women as regards access to employment, vocational training and promo­
tion, and working conditions, nor Council Directive 92/85/EEC on the intro­
duction of measures to encourage improvements in the safety and health at
work of pregnant workers and workers who have recently given birth or are
breast-feeding (tenth individual directive within the meaning of Article 16(1)
of Directive 89/391/EEC) precludes the application of clauses of the kind
examined in this Opinion under which:
(a) an employer, who is prepared, for the benefit of his employees, to go
beyond the legal provisions applicable to pay during maternity leave,
imposes, as a quid pro quo, by means of clauses like those of the EOC
Maternity Scheme, the requirement that the employees declare, before com­
mencing maternity leave, that they intend returning to work and give an
undertaking to repay the difference between the full salary paid to them and
the Statutory Maternity Pay that they would have received had they not
given an undertaking to return to work, in the event of their failing to come
back to work for at least one month;
(b) where a worker has indicated that she wishes to commence maternity leave
on any date in the six weeks prior to the expected week of confinement
and is declared unfit for work on account of pregnancy immediately before
that date, then, if the birth occurs whilst she is in that situation, the com­
mencement of her maternity leave may be backdated to the later of the fol­
lowing two dates: the beginning of the period of sick leave or the start of
the sixth week prior to the expected week of confinement;
(c) a woman who has begun her maternity leave or is on unpaid maternity
leave is not allowed to be accorded sick leave on full pay — being entitled
in the latter case to claim only Statutory Sick Pay — and is required, in
order to be granted such leave, to have stated, three weeks in advance, her
intention to return to work on a specified day, thereby bringing to an end,
I - 6439
OPINION OF MR RUIZ-JARABO — CASE C-411/96
if the birth has occurred, her special maternity leave arrangements, provided
that the two weeks of compulsory maternity leave have already been taken;
(d) the time for which annual leave accrues is limited to the 14 weeks' dura­
tion of the maternity leave, and such accrual is excluded during unpaid
maternity leave.
(2) Article ll(2)(a) of Directive 92/85, in conjunction with Article 8 thereof, pre­
cludes making the accrual of pension rights under an occupation scheme during
the 14 weeks' maternity leave conditional upon the employee's receiving, by
way of salary or Statutory Maternity Pay, income from her employer.
I - 6440