Judgment — ECLI:EU:C:1998:331
Date: 1998-06-30
Language of the case: English
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Concepts: Equality for men and women
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary
I — The dispute before the national courts I - 4188
II — The preliminary questions I - 4190
III — The Community legislation I - 4191
IV — The national legislation I - 4192
V — The observations submitted to the Court of Justice I - 4195
VI — Examination of the preliminary questions I - 4197
A. Opening remarks 1-4197
B. The case-law of the Court of Justice on the application of employment rights
governed by Directive 76/207 to workers who are pregnant or who have recently
given birth I - 4201
(1) The Dekker and Hertz judgments, in which the Court held that it was dis­
criminatory to refuse to engage a pregnant woman but not to dismiss her
because of incapacity for work commencing after maternity leave, even
though the illness was caused by the confinement I - 4201
(2) The Habermann-Beltermann judgment, in which the Court considered it dis­
criminatory for a contract of employment to be declared void or avoided by
virtue of the legal prohibition of night work for pregnant women I - 4207
(3) The Webb judgment, in which the Court held that the situation of a pregnant
woman, who is unfit to carry out work for which she was recruited, cannot
be compared with that of a man who suffers the same incapacity for medical
or other reasons I - 4208
(4) The Larsson judgment, in which the Court appears to have taken the view
that it is not discriminatory to take account, for the purposes of dismissal, of
a woman's incapacity for work, attributable to pregnancy before commence­
ment of maternity leave I - 4209
* Original language: Spanish.
I - 4187
OPINION OF MR RUIZ-JARABO — CASE C-394/96
C. The first question from the House of Lords: dismissal of a pregnant woman
through incapacity for work attributable to pregnancy I - 4213
D. The second question from the House of Lords: dismissal of a pregnant woman
during the period in which, had she fulfilled the requirements laid down by
national law, she could have absented herself from work on account of preg­
nancy and confinement I - 4219
VII — Conclusion I - 4222
1. Is it contrary to Community law, and
specifically to Directive 76/207/EEC 1 (here­
inafter 'Directive 76/207'), for an employer
to dismiss a pregnant worker on account of
incapacity for work caused by her preg­
nancy, the period of such incapacity having
exceeded that which, under the contract of
employment, entails dismissal of workers on
grounds of sickness? That, in general terms,
is the question on which the House of Lords
seeks a preliminary ruling in this case.
I — The dispute before the national courts
2. The facts, as described in the order for
reference, are as follows: Mrs Brown, the
appellant in the main proceedings, was
employed as a driver for Rentokil Limited,
which has now become Rentokil Initial UK
Limited (hereinafter 'Rentokil'), the respon­
dent in those proceedings. Her job was
mainly to transport and change Sanitact units
in shops and other centres. She became preg­
nant and informed Rentokil in August 1990.
Her pregnancy later became complicated
through a number of interrelated causes, of
which details are not given in the documents
before the Court. As from 16 August 1990
she submitted a succession of four-week
medical certificates mentioning various diag­
noses such as 'symptoms of pregnancy',
'bleeding in pregnancy' or 'pregnant back­
ache'. From that time, until her dismissal, the
appellant remained unable to work.
3. The respondent included a clause in the
contract of employment under which any
employee, man or women, who was inca­
pable of work for more than 26 weeks with­
out interruption would be dismissed. On 9
November 1990 Mrs Brown had a meeting
with two executives of the company, who
informed her that half of the 26-week period
had passed and reminded her that her
employment contract would be terminated
1 — 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. 40).
I-4188
BROWN v RENTOKIL
on 8 February 1991 if she was not back at
work by that time, following an independent
medical examination confirming that she was
able to work. Those details were confirmed
to her by letter of the same date.
The appellant did not go back to work after
receiving that letter. The parties agree that
there was never any question of her being
able to return to work prior to the expiry of
the 26-week period.
4. In accordance with the abovementioned
clause, the appellant was dismissed while she
was still pregnant, by letter dated 30 January
1991 with effect from 8 February 1991. She
gave birth on 22 March 1991.
5. The national court states in its order for
reference that, on the basis that 22 March
1991 was also the expected date of confine­
ment, then, had the appellant been employed
for two years on 30 December 1990, she
would have been entitled to absent herself
from work from the beginning of the 11th
week before confinement 2and would have
had the right to return to work at any time
in the 29 weeks following her confinement.
Owing to the appellant's length of service,
she was not so entitled, although, if she had
not been dismissed, she would have been
entitled to maternity pay from her employer.
6. The Industrial Tribunal dismissed the
proceedings brought by the appellant, in
which she alleged discrimination on grounds
of sex, stating: 'It is plain that where as in
this case an absence through illness related to
reasons of pregnancy but beginning long
before the applicability of the statutory
maternity provisions and subsisting continu­
ously thereafter followed by dismissal does
not fall to be put into the automatic category
of being discriminatory because the dismissal
was due to pregnancy'.
7. The Employment Appeal Tribunal dis­
missed Mrs Brown's appeal by judgment of
23 March 1992. That tribunal considered
itself bound by the decision of the Court of
Appeal in Webb v EMO Air Cargo UK Lim­
ited and held that the industrial tribunal had,
as the law stood at that time, reached the
correct conclusion.
8. Lord Allanbridge, giving the judgment of
the Extra Division of the Court of Session,
dated 18 January 1995, held that a prelimi­
nary conclusion was that in Mrs Brown's
2 — Pursuant to section 33 of the Employment Protection (Con­
solidation) Act 1978.
I-4189
OPINION OF MR RUIZ-JARABO — CASE C-394/96
case there was no discrimination under the
Sex Discrimination Act 1975. He further
held that the clear distinction established by
the Court of Justice in the Hertz case 3
between pregnancy and illness attributable to
pregnancy was applicable to Mrs Brown's
appeal. Therefore, the appellant, whose
absence was due to illness and who was dis­
missed on account of that illness in February
1991, could not succeed on the facts relevant
to her case.
II — The preliminary questions
9. In order to determine the dispute, which
came before it by way of appeal from the
judgment of 18 January 1995, the House of
Lords, after hearing submissions from the
parties, referred the following questions to
the Court of Justice for a preliminary ruling:
'1 . (a) Is it contrary to Articles 2(1) and
5(1) of Directive 76/207 of the
Council of the European Communi­
ties ("the Equal Treatment Direc­
tive") to dismiss a female employee
at any time during her pregnancy as
a result of absence through illness
arising from that pregnancy?
(b) Does it make any difference to the
answer given to Question 1(a) that
the employee was dismissed in pur­
suance of a contractual provision
entitling the employer to dismiss
employees, irrespective of gender,
after a stipulated number of weeks of
continuous absence?
2. (a) Is it contrary to Articles 2(1) and
5(1) of the Equal Treatment Direc­
tive to dismiss a female employee as
a result of absence through illness
arising from pregnancy who does
not qualify for the right to absent
herself from work on account of
pregnancy or childbirth for the
period specified by national law
because she has not been employed
for the period imposed by national
law, where dismissal takes place dur­
ing that period?
(b) Does it make any difference to the
answer given to Question 2(a) that
the employee was dismissed in pur­
suance of a contractual provision
entitling the employer to dismiss
employees, irrespective of gender,
after a stipulated number of weeks of
continued absence?'3 — Case C-179/88Handels-og Kontorfunktionærernes Forbund i
Danmark v Dansk Arbejdsgiverforening [1990] ECR I-3979.
I - 4190
BROWN v RENTOKIL
III— The Community legislation
The Community provisions of which an
interpretation is needed for judgment to be
given in this dispute are all contained in
Directive 76/207, namely Article 2(1) and (3)
and Article 5(1) and (2), which provide as
follows:
'(1) For the purposes of the following pro­
visions, the principle of equal treatment
shall mean that there shall be no dis­
crimination whatsoever on grounds of
sex either directly or indirectly by refer­
ence in particular to marital or family
status.
(2) ...
(3) This Directive shall be without preju­
dice to provisions concerning the pro­
tection of women, particularly as
regards pregnancy and maternity.'
'Article 5
(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 guaran­
teed the same conditions without discrimi­
nation 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 con­
tracts 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.
(c) ..."
I-4191
OPINION OF MR RUIZ-JARABO — CASE C-394/96
10. On 19 October 1992 the Council
adopted Directive 92/85/EEC 4 in order to
protect the health and safety of pregnant
workers who have given birth or are breast­
feeding (hereinafter 'Directive 92/85'), which
requires the Member States to adopt, before
19 October 1994, among others provisions
needed to ensure that female workers enjoy a
continuous period of maternity leave of at
least 14 weeks, allocated before and/or after
confinement, including two weeks compul­
sory leave. It also prohibits dismissal of a
pregnant worker, in the following terms:
'Article 10
(1) Member States shall take the necessary
measures to prohibit the dismissal of work­
ers [who are pregnant, have recently given
birth or are breastfeeding] during the period
from the beginning of their pregnancy to the
end of the maternity leave ... save in excep­
tional circumstances not connected with
their condition which are permitted under
national legislation and/or practice and,
where applicable, provided that the compe­
tent authority has given its consent.
…'
11. However, since Mrs Brown was dis­
missed at the beginning of 1991, there is no
need to interpret those provisions.
IV — The national legislation
12. The national provisions applicable to the
main proceedings are contained in the Sex
Discrimination Act 1975 (hereinafter 'the
1975 Acť), the Employment Protection
(Consolidation) Act 1978 (hereinafter 'the
1978 Act') and the Social Security Act 1986
(hereinafter 'the 1986 Act').
Sections 1 and 5 of the 1975 Act provide that
a woman is discriminated against on grounds
of sex if, for the purposes of that act, she
receives less favourable treatment than a
man. A comparison must be made between
the cases of persons of different sex or mari­
tal status such that the circumstances in the
one case are the same, or not materially dif­
ferent, in the other.
As regards rights of employees in connection
with pregnancy and maternity, the 1978 Act
4 — 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 breastfeeding (tenth
individual directive within the meaning of Article 16(1) of.
Directive 89/391/EEC) (OJ 1992 L 348, p. 1).
I-4192
BROWN v RENTOKIL
provided, at the time of Mrs Brown's dis­
missal, that an employee who is absent from
work because of pregnancy or confinement
will be entitled to return to work, provided
that the following conditions are met:
— she continues to be employed, whether
or not at work, at the beginning of the
11th week before the expected date of
confinement;
— at the beginning of that 11th week she
has been employed for a period of not
less than two years;
— she informs her employer in writing at
least 21 days before stopping work:
— that her absence will be due to pregnancy
or confinement;
— that she intends to return to work;
— of the expected week of confinement or,
if the confinement has occurred, the date
on which she gave birth;
— she submits, at the employer's request, a
medical certificate indicating the expected
week of confinement.
As regards dismissal, the 1978 Act provided
at the material time that an employee was to
be treated as unfairly dismissed if the direct
or indirect reason for her dismissal was that
she was pregnant, unless, on the date of the
dismissal, she was incapable, because of her
pregnancy, of adequately performing her
work or if, because of her pregnancy, she
could not continue to work after that date
without contravention, either by her or her
employer, of a duty or restriction imposed
by or under any enactment. The national
court makes it clear that, at the material time,
Mrs Brown would have had to have com­
pleted two years' continuous employment in
order to avail herself of the right not to be
unfairly dismissed, a requirement which she
did not meet.
The subsequent amendment of the provi­
sions of that Act which govern unfair dis­
missal, made in order to incorporate the pro­
visions of Directive 92/85, entered into force
on 10 June 1994.
I-4193
OPINION OF MR RUIZ-JARABO — CASE C-394/96
Finally, so far as is relevant here, the 1986
Act provides that a female employee will be
entitled to maternity pay from her employer
if she meets the following conditions:
— she has been in the employer's service for
a continuous period of at least 26 weeks,
ending with the week immediately pre­
ceding the 14th week before the expected
date of confinement, but has ceased to
work wholly or partly because of preg­
nancy or confinement;
— she has received weekly earnings for the
period of eight weeks ending with the
week immediately preceding the 14th
week before the expected date of confine­
ment which are not less than the lower
earnings limit in force before the com­
mencement of that 14th week;
— she has reached the beginning of the 11th
week prior to the expected date of con­
finement or has given birth before that
time;
— and she has notified her employer that
she is ceasing work because of her preg­
nancy or confinement.
Maternity pay will be payable for a maxi­
mum period of 18 weeks, normally com­
mencing in the 11th week preceding the
expected confinement date, but no later than
the sixth week. Provision is made for two
types of maternity pay, referred to as the
higher rate and the lower rate. The higher
rate is equivalent to nine-tenths of a wom­
an's normal weekly earnings for the period
of eight weeks preceding the 14th week
before the expected week of confinement;
the lower rate, the amount of which is fixed,
applies when it is found to exceed the higher
rate. A woman who, for a continuous period
of at least two years ending at the beginning
of the 14th week prior to the expected con­
finement date, has worked for an employer
who is liable to pay the allowance to her will
receive it at the higher rate for the first six
weeks and at the lower rate for the remain­
ing period. A woman working for her
employer under an employment contract
involving employment for less than 16 hours
weekly will not be entitled to receive the
allowance at the higher rate. A woman
entitled to maternity pay who is unable to
claim the higher rate will receive the lower
rate.
According to the documents before the
Court, in 1996 the lower rate of maternity
pay was, in 1996, UKL 54.55 per week.5
5 — Social Security Benefits Up-rating Order 1996, SI 1996/599,
Arts l(2)(c) and 10, as from 7 April 1996. The previous
amount was UKL 52.50 (Social Security Benefits Up-ratine
Order 1995, SI 1995/559, Art. (10)). There is no indication of
the amount payable at the time of the events in the main
proceedings.
I - 4194
BROWN v RENTOKIL
V — The observations submitted to the
Court of Justice
13. Written observations were submitted
within the period laid down by Article 20 of
the EC Statute of the Court of Justice, and
oral argument was presented at the hearing
by the appellant, the respondent, the United
Kingdom Government and the Commission.
14. The appellant, on the basis of the case-
law of this Court, which I shall examine in
due course, considers that the dismissal of a
pregnant woman on account of incapacity
for work attributable to pregnancy is con­
trary to Directive 76/207 and constitutes
direct discrimination on grounds of sex,
since pregnancy is a condition which affects
only women. She considers that it is also
contrary to that directive to dismiss a preg­
nant worker on account of incapacity for
work attributable to her condition, when she
is not entitled to absent herself from work
on account of pregnancy or childbirth for
the period specified by national law because
of insufficient length of service, if the dis­
missal takes place during that period. Finally,
she maintains that the fact that the dismissal
occurred under a contractual rule enabling
the employer to dismiss a worker, regardless
of sex, for continuous absence for a given
number of weeks has no bearing on that pos­
ition.
15. The respondent states that it is necessary
to go back to a date falling 11 weeks before
the expected date of confinement in order to
arrive at the date on which Mrs Brown's
employment rights should be considered.
Since on 30 December 1990 she had not
worked for her employer for a continuous
period of two years she was not entitled to
the benefit of the right to return to work
provisions, nor could she rely on the provi­
sions concerning unfair dismissal intended to
protect pregnant women against dismissal on
account of their pregnancy. She was, how­
ever, entitled to maternity pay at the lower
rate, payable by the State.
It submits that, in view of the circumstances
in which Mrs Brown found herself, the rea­
son for her being dismissed was not that she
became pregnant but rather that her preg­
nancy was abnormal, preventing her from
working from about the eighth week. The
duration of her incapacity for work was
longer than might normally be anticipated,
falling entirely outside the period generally
provided for on account of maternity. The
reason for Mrs Brown's dismissal was that
she became ill during her pregnancy and her
unavailability for work exceeded 26 weeks.
On the basis of the same case-law as that
relied on by the appellant to reach the oppo­
site conclusion, it submits that the rule in the
employment contracts concluded with its
employees, which allowed Mrs Brown to be
I-4195
OPINION OF MR RUIZ-JARABO — CASE C-394/96
dismissed after 26 weeks' absence, is not dis­
criminatory. In support of that view, it gives
the example of an employer who employs
three pregnant women. The first, who is
robust, has no time off until she is able to
absent herself from work by reason of
maternity; the second has some time off due
to pregnancy-related health problems before
the beginning of her absence; the third is Mrs
Brown's case: her pregnancy-related incapac­
ity for work exceeded 26 weeks and she was
dismissed on the same terms as a male
employee after absence through illness for
precisely the same period. Why should such
an approach be described as sex discrimi­
nation? On the contrary, if Mrs Brown were
treated in a manner different from other
pregnant women or male employees, that
would be equivalent to introducing positive
discrimination applicable only to a section of
pregnant employees rather than in all cases
of pregnant employees.
It maintains that a distinction must be drawn
between an illness like that suffered by Mrs
Brown, which led to her being unfit for
work practically throughout the whole of
her pregnancy, and the 'normal risks of preg­
nancy', such as morning sickness at the start
of the pregnancy and tiredness towards the
end, problems which, moreover, do not arise
in all pregnancies. The answer to be given to
the House of Lords must, in its opinion, be
based on that distinction.
As regards the fact that Mrs Brown was dis­
missed when, if her length of service had
been sufficient, she would have been entitled
to absent herself from work on account of
pregnancy, the respondent considers that, as
the applicable Community law stood at that
time, it was exclusively for the Member
States to determine the conditions under
which a woman would be entitled to such
right of absence and to set the duration
thereof. Exercising that prerogative, the
United Kingdom imposed the legal require­
ment of two years' service. In any event, Mrs
Brown was dismissed for being absent on
sick leave for the number of weeks laid
down in her contract of employment, and
not for her absences in the short period for
which, had she been entitled to absent herself
from work on account of pregnancy, she
could have done so.
16. The United Kingdom Government
stresses that the period for which Mrs
Brown was unfit for work, as a result of
pregnancy, far exceeded the period for which
a woman may absent herself on account of
pregnancy and confinement under national
law. It states that, in order to answer the pre­
liminary questions, it is necessary to distin­
guish dismissal arising out of normal risks
and disorders normally inherent in preg­
nancy and maternity, for example absence
from work for routine ante-natal appoint­
ments, minor absences for morning sickness
and absences during the period immediately
preceding and following her confinement,
from dismissal of a woman arising out of
sickness, whether pregnancy-related or not.
In the first case, the dismissal will constitute
I-4196
BROWN v RENTOKIL
direct sex discrimination, whereas in the sec­
ond case it will be lawful, provided that a
male employee who was unfit for work for a
similar period would have been treated no
more favourably. In its view, it is for the
national court to determine whether the
period for which Mrs Brown was absent was
justified by a normal risk of pregnancy.
17. The Commission states that there is no
objective justification for making a distinc­
tion during pregnancy, in order to apply dif­
ferent treatment to them, between the period
before the worker can exercise the right to
absent herself from work and the period
from that time until the birth. Nor does it
consider that there is any justification for
distinguishing between dismissal for reasons
of pregnancy and dismissal for reasons of
pregnancy-related incapacity for work, pro­
vided that dismissal takes place when the
worker is still pregnant, since health prob­
lems associated with pregnancy are due to a
specifically female condition both before and
during her absence. The application to
women in Mrs Brown's situation of the rule
applicable to workers in general, in case of
illness, constitutes discrimination against
women since the situations involved are dif­
ferent.
It adds that that view is confirmed by Article
10 of Directive 92/85, which prohibits dis­
missal of workers in the period from the
beginning of their pregnancy to the end of
their maternity leave. Despite the fact that
the period within which the Member States
were to incorporate the directive in their
national law had not expired at the material
time, its provisions must be taken into
account in interpreting Directive 76/207.
VI — Examination of the preliminary ques­
tions
A. Opening remarks
18. Before considering the problems raised
by the questions, I wish to make a number
of observations.
19. The first concerns the order for refer­
ence, which is particularly laconic in its
account of the facts of the main proceedings.
There is no indication, for example, of how
long Mrs Brown had been pregnant when
she became unfit for work or of the expected
date of confinement or whether her preg­
nancy was in any way subject to high risks. I
also consider that the reasons which, it
appears, were given in the successive medical
certificates, namely 'symptoms of preg­
nancy', 'bleeding in pregnancy' and 'preg­
nant backache', if they were the only ones,
seem, especially in the case of the first and
I-4197
OPINION OF MR RUIZ-JARABO — CASE C-394/96
third, not to constitute very cogent reasons
for a doctor to have repeatedly certified
unfitness for work for a continuous period
of 26 weeks. Nor are we told whether Mrs
Brown underwent the independent medical
examination scheduled for the end of the 26
weeks or, if so, what the result was.
I imagine that the purpose of that examina­
tion was for the company to obtain an inde­
pendent opinion as to the worker's chances
of recovery, with a view to her returning to
work sooner or later, dismissal being the
appropriate course if the result of the exami­
nation suggested that she would not return
to work in the short or medium term. If that
were not the case, the dismissal would
appear to be a disciplinary dismissal on
grounds of illness rather than dismissal justi­
fied by a situation in which the employer
had to bear an excessive burden.
If Mrs Brown's unfitness for work was actu­
ally caused by her pregnancy, and there is no
reason to think that the position was other­
wise, it would seem logical to assume that
she would cease to be unfit when she gave
birth. Why, therefore, was she dismissed
one-and-a-half months before she gave
birth? Simply because she had by then been
away for 26 weeks, or was it rather because
national law gave her no right to be rein­
stated after her confinement because her
length of service with the company was less
than two years?
Those are, of course, matters of fact to be
assessed by the national court in the light of
the interpretation of Community law given
by the Court of Justice. I must point out,
however, that it would have been useful for
those facts to have been disclosed.
20. The second observation relates to the
need to define, once and for all, the respec­
tive fields of application of Directives 76/207
and 92/85, in the light of their provisions and
their purposes. 6 The respondent states that
the repercussions of the judgment to be
given in this case will be very limited since
Directive 92/85 requires the Member States
to prohibit, with effect from no later than 19
October 1994, dismissal of a worker who is
pregnant, has recently given birth or is
breastfeeding. In its opinion, Mrs Brown was
merely unlucky since, when she was dis­
missed, that directive had not been adopted.
I cannot agree with that view, since the pro­
visions of the two directives differ and the
aims which they pursue are also different.
21. Directive 76/207, whose legal basis is
Article 235 of the EC Treaty, represents
6 — That need was pointed out when Directive 92/85 was merely
planned, by J. Shaw: 'Pregnancy discrimination in sex dis­
crimination', European Law Review 1991, pp. 313-320, in
particular at p. 318.
I-4198
BROWN v RENTOKIL
Community action considered necessary, at
the relevant time, in order to achieve the
principle of equal treatment for men and
women in respect of access to employment,
vocational training and promotion and in
respect of other working conditions. 7 The
only exceptions allowed to the principle of
equal treatment are to be found in Article
2(2), (3) and (4), specifically relating to occu­
pational activities for which, by reason of
their nature, the sex of the worker consti­
tutes a determining factor; provisions relat­
ing to protection of women, particularly in
relation to pregnancy and maternity; and
measures to promote equal opportunity for
men and women, in particular by removing
any existing inequalities which affect wom­
en's opportunities in the areas covered by
the directive. In all cases, the measures
involved, as Community law stands at
present, are a matter for the Member States.
22. Directive 92/85, on the other hand, has
as its legal basis Article 118a of the Treaty,
which requires the Council to adopt, by
means of directives, minimum provisions to
encourage improvements, especially in the
working environment, as regards the health
and safety of workers; it is the tenth indi­
vidual directive adopted under Article 16(1)
of Directive 89/391/EEC, 8 Article 15 of
which provides that particularly sensitive
risk groups must be protected against the
dangers which specifically affect them.
The purpose of Directive 92/85 is to apply
measures to encourage improvements to
health and safety at work for workers who
are pregnant, have recently given birth or are
breastfeeding. It is thus clearly concerned
with protection, providing for different
treatment for women in any of those situa­
tions. The legislature itself recognises, in the
ninth recital in the preamble, that such pro­
tection should not treat women on the
labour market unfavourably or work to the
detriment of directives concerning equal
treatment for men and women.
As the Court of Justice stated in its judgment
in Webb, 9 in view of the effects which the
risks of dismissal may have on the physical
and mental state of women who are preg­
nant, have recently given birth or are breast­
feeding, including the particularly serious
risk that pregnant women may be prompted
voluntarily to terminate their pregnancy, the
Community legislature provided, pursuant
to Article 10 of Directive 92/85, for special
protection to be given to women by prohib­
iting dismissal during the period from the
7 — Third recital in the preamble.
8 — Council Directive 89/391/EEC of 12 June 1989 on the intro­
duction of measures to encourage improvements in the
safety and health of workers at work (OJ 1989 L 183, p. 1).
9 — Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567,
paragraphs 21 and 22.
I-4199
OPINION OF MR RUIZ-JARABO — CASE C-394/96
beginning of their pregnancy to the end of
their maternity leave, and that there is to be
no exception to that prohibition during that
period save in exceptional cases not con­
nected with the condition of the person con­
cerned.
23. It is true that, once the prohibition of
dismissal laid down in Article 10 of Directive
92/85 is incorporated in the domestic law of
the Member States, it will become unneces­
sary to apply Article 5 of Directive 76/207,
which lays down the principle of equal treat­
ment for men and women with regard to
working conditions, including the conditions
governing dismissal, to cases in which a
woman has been dismissed whilst pregnant.
However, the prohibition of dismissal in
Article 10 of Directive 92/85 does not
resolve the problem of a woman who, having
returned to work on an entirely normal basis
after her maternity leave, is then dismissed
for having been intermittently unfit for work
during the previous year for the number of
weeks laid down by national legislation; in
such circumstances, is the woman dismissed
on the same terms as a man who has been ill
for the same number of weeks, when for the
female worker account is taken of the period
for which she was confined to bed on doc­
tor's orders because, for example, her preg­
nancy displayed a risk of miscarriage?
That is why Article 5 of Directive 76/207
and the Court's case-law interpreting it will
continue to be essential in order to clarify
the question whether the periods for which a
pregnant woman has been prevented from
working because of her pregnancy may be
added to the periods preceding her preg­
nancy and following hermaternity leave, for
the purpose of calculating absences from
work such as to justify dismissal.
24. My third observation relates to the case-
law of this Court interpreting the principle
of equal treatment laid down by Directive
76/207, where the employment rights of
workers who are pregnant or have recently
given birth are involved. It might not at first
sight seem extraordinary that the only four
judgments on this subject delivered before
the expiry date of the period for submitting
written observations in this case, namely the
judgments in Dekker, 1 0 Hertz, 11
Habermann-Beltermann, 1 2 and Webb, 13
enabled the parties to the main proceedings,
the United Kingdom Government and the
Commission to defend such conflicting posi­
tions. What is surprising, and indeed worry­
ing, is that all rely on the same paragraphs in
support of their views.
I believe therefore that, as well as answering
the preliminary questions from the House of
10 — Case C-177/88 Dekker [1990] ECR I-3941.
11 — Cited in footnote 3 above.
12 — Case C-421/92 Habermann-Behermann [1994] ECR
I-1657.
13 — Cited in footnote 9 above.
I - 4200
BROWN v RENTOKIL
Lords, the Court must clarify the existing
case-law, in order to ensure legal certainty.
From my part, I shall review those judg­
ments and suggest how I think they should
be interpreted.
B. The case-law of the Court of Justice on
the application of employment rights gov­
erned by Directive 76/207 to workers who
are pregnant or who have recently given
birth
(1) The Dekker and Hertz judgments, in
which the Court held that it was discrimina­
tory to refuse to engage a pregnant woman
but not to dismiss her because of incapacity
for work commencing after maternity leave,
even though the illness was caused by the
confinement
25. On 8 November 1990, this Court deliv­
ered two judgments which have had a con­
siderable impact in the area of Community
social law concerned with application of the
principle of equal treatment for men and
women in matters of employment. They
were the first in which the interpretation of
Directive 76/207 was in issue and, more spe­
cifically, the right of access to employment
or the right to maintain a post in relation to
situations as exclusive to women as preg­
nancy and maternity. Both illustrate well the
thesis of Lucinda M. Finley, which can be
summarised in the following statement:
'The fact that women bear children and men
do not has been the major impediment to
women becoming fully integrated into the
public world of the workplace'. 14
26. They are the Dekker 15 and Hertz 16
judgments. In the first, the Court gave a pre­
liminary ruling on a question from the Hoge
Raad der Nederlanden (Supreme Court of
the Netherlands), dealing with a case in
which Mrs Dekker, a candidate for a post of
instructor in a training centre for young
adults, who had informed the selection com­
mittee that she was three-months pregnant
and who had been recommended by the
committee as the most suitable candidate for
the duties involved, objected to the employ­
er's refusal to engage her on the ground that
she was already pregnant when she submit­
ted her application. That refusal came after
the employer established that its insurer
would not reimburse the daily benefit that it
would have to pay the worker during her
absence on account of pregnancy and con­
finement. The applicable national law
allowed the insurer to refuse wholly or in
part to refund daily benefits to the employer
where the employee's incapacity for work
had arisen within the six months following
recruitment, provided that, at that time, the
worker's state of health was such that the
14 — Lucinda M. Finley, Transcending Equality Theory: A Way
out of the Maternity and the Workplace Debate', Columbia
Law Review, Vol. 86: 1118, p. 1119.
15 — Cited in footnote 10 above.
16 — Cited in footnote 3 above.
I - 4201
OPINION OF MR RUIZ-JARABO — CASE C-394/96
emergence of incapacity within that period
could be foreseen. Since no exception was
made for pregnancy, incapacity for work by
reason of maternity was treated in the same
way as incapacity for work because of a
foreseeable sickness.
The national court's question, so far as rel­
evant to this case, was whether the employ­
er's refusal to engage the worker in those cir­
cumstances was contrary to the principle of
equal treatment laid down in Directive
76/207.
27. In the second case, the preliminary rul­
ing was sought by the Højesteret (Supreme
Court), Denmark, to enable it to give judg­
ment in the proceedings before it, brought
by Mrs Hertz against her former employer,
Aldi-Marked K/S. Mrs Hertz had been
recruited in July 1982 as a part-time cashier
and saleswoman. In June 1983, after a preg­
nancy marked by complications, for most of
which, with the consent of her employer, she
was on sick leave, she gave birth to a son.
Towards the end of 1983, at the end of her
maternity leave, Mrs Hertz returned to work
and did not take any more sick leave until
June 1984. In the course of the next year she
was on sick leave for 100 working days, for
which reason she was dismissed: the com­
pany claimed that it was normal practice to
dismiss workers who were ill frequently. It
was common ground between the parties
that the plaintiff's absences between June
1984 and June 1985 were a consequence of
her confinement in 1983.
The national court asked whether Article
5(1), in conjunction with Article 2(1), of
Directive 76/207 covered dismissals as a con­
sequence of absences due to illness attribut­
able to pregnancy or confinement and, if so,
whether protection against dismissal due to
illness caused by pregnancy or confinement
was unlimited in time.
28. Advocate General Darmon, who deliv­
ered an Opinion covering both cases, carried
out a general and invaluable review of the
question of motherhood and the place which
it should occupy, in the light of the principle
of equal treatment for men and women, in
the economic and social life of European
societies, 17 which is still up to date today.
After considering whether there was any
event more closely connected to the specific
nature of womanhood, and whether it was
conceivable to treat female workers on an
equal footing with their male counterparts
without taking account of motherhood, he
took the view, in the Dekker case, that the
refusal to employ the candidate on account
of forthcoming motherhood, thereby taking
into consideration an event which affected
only female workers, constituted direct dis­
crimination on grounds of sex.
29. The Hertz case, he said, involved in a
perhaps more pressing way the difficult task
17 — Opinion of Advocate General Darmon in the Hertz and
Dekker cases, cited in footnotes 3 and 10 above, [1990]
ECR I-3956, in particular point 21 et seq., at I-3960.
I - 4202
BROWN v RENTOKIL
of reconciling the principle of equal treat­
ment with the demands of economic life.
And he added 'How are periods of sickness
occurring after maternity leave but directly
attributable to pregnancy and confinement
to be viewed? Should it or should it not be
subject to what might be termed "the ordi­
nary rules" governing absences for reasons
of health?' 18 The conclusion which he
reaches in that case is the opposite of that in
Dekker, namely that the dismissal of a
worker outside periods of maternity leave
because of absences due to illness attribut­
able to pregnancy or confinement does not
constitute discrimination directly based on
sex.
30. I must make it clear, however, that that
bare statement is the consequence of reason­
ing which incorporates throughout the idea
that the worker's absences were justified by
illness originating from pregnancy or con­
finement, which occur after the expiry of the
maternity leave. In fact, in point 43, he says
'I have to confess that I was tempted to pro­
pose a solution whereby medical conditions
which were directly, definitely and prepon­
derantly due to pregnancy or confinement
would enjoy ... "immunity", in the sense that
the principle of equality of treatment would
restrain the employer from dismissing his
employee for a reasonable period after the
event in question. ' 19
In paragraph 45, he says 'If complications
resulting from a confinement arc severe, a
female worker may remain unable to work
for several years, without her employer's
being able to dismiss her ...'. In point 46, he
explains that '... an expedient protecting a
few women affected by severe post-natal
problems — in statistical terms, fortunately a
minute percentage of cases — may jeopardise
the chances of all women wishing to enter
the labour market'.
In the next point, when he considers what
criteria the Court could adopt in order to
decide in which cases a medical condition
must fall within the protection demanded by
maternity and what the duration of such
protection should be, the underlying idea
continues to be that the principle of equal
treatment applies once the woman has come
to the end of her maternity leave.
And, in point 48, the solution he suggests is
to draw a distinction between the normal
risks of pregnancy and confinement, which
he defines as 'the common attendant compli­
cations sometimes leading to the grant of
additional maternity leave' — risks which, in
his opinion, should qualify for Community
protection inasmuch as they are specific to
motherhood — and medical conditions
which are not associated with the ordinary
risks of pregnancy and should therefore be
treated on the same footing as 'ordinary'
18 — Point 40.
19 — Emphasis added in all cases.
I - 4203
OPINION OF MR RUIZ-JARABO — CASE C-394/96
sickness, adding that '... in the absence of
national legal provisions conferring special
protection on women, the employer must be
able to dismiss his employee at the end of
maternity leave ... Thus, once a female
worker has exhausted her entitlement to the
various types of maternity leave, peńods of
absence for reasons of sickness, even if those
reasons can be traced back to pregnancy or
confinement, cannot be attributed to the nor­
mal risks of maternity and must accordingly
be viewed in the same light as the absences of
any other worker, unless the national legisla­
ture provides special protection pursuant to
Article 2(3) of the Directive'.
31. Both judgments were delivered by the
full Court, which adopted the solution pro­
posed by the Advocate General. The hear­
ings were held on 3 October 1989 and the
Opinion was delivered on 14 November of
the same year. The fact that the judgments
came a year later is indicative, in my opinion,
of the difficulties involved in those cases, in
particular Hertz, as the Court itself acknowl­
edges in paragraph 7 of its judgment, which
may account for the sparse nature of the rea­
soning of both judgments.
32. In the Dekker judgment, the Court took
the view that only women can be refused
employment on account of pregnancy and
such refusal therefore constitutes direct dis­
crimination on grounds of sex, that a refusal
of employment on account of the financial
consequences of absence due to pregnancy is
essentially based on the fact of pregnancy,
and that such discrimination cannot be justi­
fied on grounds relating to the financial loss
which an employer who appointed a preg­
nant woman would surfer for the duration of
her maternity leave. 20
33. The grounds and operative part of the
Hertz judgment, however, deserve special
attention. It should be remembered that the
positions of the parties, as set out in para­
graphs 8 and 9 of the judgment, were that
some claimed that the dismissal of a woman
on account of pregnancy, confinement or
repeated periods of absence due to an illness
attributable to pregnancy or confinement is,
irrespective of the time when the illness
occurs, contrary to the principle of equal
treatment, since a male worker is not subject
to such disorders and hence cannot be dis­
missed on that ground. The others main­
tained that an employer cannot be prohibited
from dismissing a female worker on account
of her frequent periods of sick leave solely
because her illness is attributable to preg­
nancy or confinement. Such a prohibition,
which would affect the employer for many
years after the confinement, would be liable
to entail not only administrative difficulties
and unfair consequences for employers but
also negative repercussions on the employ­
ment of women.
34. That judgment is of fundamental impor­
tance when it comes to reconciling the prin­
ciple of equal treatment for men and women
in matters of employment with the role of
women in the reproductive process. Indeed,
paragraph 13 states: 'It follows from the pro­
visions of the directive ... that the dismissal
20 — Cited in note 10 above, paragraph 12.
I - 4204
BROWN v RENTOKIL
of a female worker on account of pregnancy
constitutes direct discrimination on grounds
of sex, as is a refusal to appoint a pregnant
woman ...'; in paragraph 14, the Court states
that 'the dismissal of a female worker on
account of repeated periods of sick leave
which are not attributable to pregnancy or
confinement does not constitute direct dis­
crimination on grounds of sex, inasmuch as
such periods of sick leave lead to the dis­
missal of a male worker in the same circum­
stances' and, in paragraph 15, that '... direc­
tive [76/207] does not envisage the case of an
illness attributable to pregnancy or confine­
ment. It does, however, admit of national
provisions guaranteeing women's specific
rights on account of pregnancy and mater­
nity, such as maternity leave. During the
maternity leave accorded to her pursuant to
national law, a woman is accordingly pro­
tected against dismissal due to absence. 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 confinement occur.'
35. It is paragraphs 16 and 17 which, in my
opinion, indicate the direction to be taken in
interpreting that judgment. In them, the
Court expressly states that
'In the case of an illness manifesting itself
after the maternity leave, there is no reason
to distinguish an illness attributable to preg­
nancy or confinement from any other illness.
Such a pathological condition is therefore
covered by the general rules applicable in the
event of illness.
Male and female workers are equally
exposed to illness. Although certain disor­
ders are, it is true, specific to one or other
sex, the only question is whether a woman is
dismissed on account of absence due to ill­
ness in the same circumstances as a man; if
that is the case, then there is no direct dis­
crimination on grounds of sex.'
36. However, the difficulty which arises in
interpreting the scope of that judgment lies
in the fact that the clarification concerning
the time at which the illness emerges does
not appear in the operative part, in which an
answer is given that corresponds precisely to
the question, as submitted — and the Court
adopts the exact wording thereof — in the
following terms: 'Without prejudice to the
provisions of national law adopted pursuant
to Article 2(3) of Council Directive
76/207/EEC ..., Article 5(1) of that directive,
in conjunction with Article 2(1) thereof, does
not preclude dismissals which are the result
of absences due to an illness attributable to
pregnancy or confinement.'
That apparent incongruity, which is easily
accounted for by the fact that, in paragraphs
I - 4205
OPINION OF MR RUIZ-JARABO — CASE C-394/96
16 and 17, the Court is very mindful of the
circumstances in which the dispute before
the national court arose, whereas, in the
operative part, the answer strictly matches
the preliminary question, as phrased by the
national court, 21 is what has given rise to the
divergent interpretations underlying the
views of the parties in these proceedings.
37. I am in no doubt whatsoever that that
judgment cannot be interpreted solely by
reference to the operative part: it must be
borne in mind that, in paragraph 16, the
Court states in absolutely clear terms that, if
the illness manifests itself after the maternity
leave, there is no reason to distinguish an ill­
ness attributable to pregnancy or confine­
ment from any other illness.
That is certainly the construction adopted by
academic authors commenting on that judg­
ment: all the commentaries I have read stress,
more or less disapprovingly, the fact that the
Court, when stating that Article 5(1), in con­
junction with Article 2(1), of Directive
76/207 does not preclude dismissals which
are the result of absences due to an illness
attributable to pregnancy or confinement, is
referring to absences occurring after mater­
nity leave. 22
38. That is also the interpretation of the
Hertz judgment adopted by Advocate Gen­
eral Tesauro in his Opinion in the Webb
case. 23 In the second paragraph of point 13,
he states that the Court of Justice consid­
ered, in that judgment, that the dismissal of a
female employee on account of repeated
absences through illness, attributable to
pregnancy or confinement, does not consti­
tute direct discrimination on grounds of sex
if those absences occur after the period of
maternity leave 24 and he adds, in footnote
No 12, which relates to that statement, that
'the judgment may certainly not be con­
strued as meaning that the Court has
21 — The question is worded as follows: Do the provisions of
Article 5(1), in conjunction with Article 2(1), of ... Directive
76/207/EEC ... encompass dismissal as a consequence of
absence due to illness which is attributable to pregnancy or
confinement?
22 — Jacqmain, J.: Chroniques de droit social, 1991, pp. 49-50,
paragraph 4; Devos, D.: Journal des tribunaux du travail,
1991, pp. 121-122, paragraph 3; Shaw, J., op cit., pp.
313-320, particularly p. 317; Traversa, E.: Revue trimestri­
elle de droit européen 1991, pp. 425-439, particularly p. 436;
Kilpatrick, C : 'How long is a piece of string? Regulation of
the Post-Birth Period' in Sex Equality Law in the European
Union, Wiley & Sons 1996, p. 81 et seq., particularly p. 84;
Burrows, N. & Mair, J.: European Social Law, Wiley &
Sons 1996, p. 155; Nielsen, R.: Common Market Law
Review, 1992, pp. 160-169, particularly p. 164; More, G.:
'Reflections on pregnancy discrimination under European
Community Law' in The Journal of Social Welfare and
Family Law, 1992, pp. 48-56,. particularly pp. 53 and 54;
Böiger, M.: 'Discrimination on Grounds of Pregnancy as
Sex Discrimination' in Gazette of the Incorporated Law
Society of Ireland, p. 383; Rodríguez-Pinero, M.: 'Discrimi­
nación por razón de sexo y embarazo de la trabajadora' in
Relaciones Laborales, volume I, 1991, p. 3 et seq., particu­
larly p. 8; Flynn, L.: 'Pregnancy and Dismissal: Rejecting
the "Sick Male" comparison' in Irish Law Times, Novem­
ber 1994, p. 257; Van Kraay, F.: The Difference Between
Pregnant Women and Sick Men' in Law Teacher, 1995, Vol.
29, p. 92 et seq., particularly p. 93; McGlynn, C. M. S.:
'Webb v EMO: a hope for the Future' in Northern Ireland
Legal Quarterly, 1995, p. 50 et seq., particularly p. 54;
Boch, C : Common Market Law Review, 1995, p. 547 et
seq., particularly p. 558; Hervey, T.: Justifications for Sex
Discrimination in Employment, Butterworths 1993, p. 67;
Szyszczak, E.: 'Community Law on Pregnancy and Mater­
nity' in Sex Equality Law in the European Union, Wiley &
Sons 1996, p. 51 et seq., particularly p. 54 and Böiger, M.:
Irish Law Times and Solicitor's Journal 1994, pp. 65-66.
23 — The Opinion preceding the Webb judgment, cited in foot­
note 9 above, [1994] ECR I-3569 et seq.
24 — Advocate General Tesauro expresses the same view in his
Opinion preceding the Habermann-Beltermann judgment,
cited in footnote 12 above, [1994] ECR I-1659 et seq.
I - 4206
BROWN v RENTOKIL
recognised as permissible (or even justifiable)
the dismissal of a woman who is absent from
work for a reason (illness) connected with
pregnancy. Closer examination reveals that
the Court's decision turned on the fact that
Mrs Hertz's illness began after her return to
work at the end of her maternity leave. ...'.
And he lays stress, in point 14, on the fact
that, 'to the extent to which that judgment
holds that it is not discriminatory to dismiss
an employee on account of absences through
an illness which, while it may be attributable
to pregnancy or confinement, began after the
end of the maternity leave, it follows a for­
tiori that the pregnancy may not be equated
with illness ...'.
39. The contradiction between the Dekker
and Hertz judgments, emphasised by some
authors, 25 lies in the fact that, in the former,
the Court described as direct discrimination
a refusal to make an appointment owing to
pregnancy, since that can apply only to
women, whereas, in the latter, it stated that,
for the purposes of dismissal, if an illness
manifests itself after maternity leave, there is
no reason to distinguish an illness attribut­
able to pregnancy or confinement from any
other illness — when it is clear that only
women can suffer an illness which is attrib­
utable to pregnancy or confinement — and
that contradiction can be resolved in my
opinion only if it is concluded that the rea­
son for that distinction lies in the fact that,
once a woman has given birth and returned
from maternity leave, her physiological state
is no different from that of male workers
and, from that time, it is inappropriate to
draw a distinction by reference to the origin
of the illness. If, as a result of having given
birth at any time in their lives, women could
claim what amounted to a sort of insurance
against dismissal for the rest of their working
life, as a result of which no account would be
taken for such purposes of periods of inca­
pacity for work following maternity leave,
whose origin might be attributable to their
pregnancy or confinement, that would
amount to a privilege contrary to the prin­
ciple of equal treatment.
(2) The Habermann-Beltermann judgment,
in which the Court considered it discrimina­
tory for a contract of employment to be
declared void or avoided by virtue of the
legal prohibition of night work for pregnant
women
40. In its judgment of 5 May 1994 in
Habermann-Beltermann, 2 6 the Court
answered preliminary questions from the
Arbeitsgericht (Labour Court) Regensburg
concerning an employment contract of inde­
terminate duration entered into by an
employer and a pregnant employee. When
they signed the contract, which required
25 — Jacqmain, J., op. cit., p. 50; More, G., op. cit., p. 55; Shaw,
J., op. cit., p. 320; Traversa, E., op. cit., p. 436; McGlynn, C.
M. S., op. cit., p. 54-55; Boch, C , op. cit., p. 559; Kifpatrick
C , op. CIL, p. 85; Szyszczak, E., op. cit., p. 54, and Bur­
rows, N. & Mair, J., op. cit., p. 155. 26 — Cited in footnote 12 above.
I - 4207
OPINION OF MR RUIZ-JARABO — CASE C-394/96
night work, both parties were unaware of the
pregnancy. The national court wished to
know whether Article 2(1), in conjunction
with Article 3(1) and Article 5(1), of Direc­
tive 76/207 precluded that contract from
being declared void as a result of the prohi­
bition of night work which applied, under
national law, during pregnancy and breast­
feeding, and from being avoided by the
employer on account of a mistake as to the
essential personal characteristics of the other
contracting party when the contract was
concluded.
The Court observed that, in the case of a
contract of indeterminate duration, the pro­
hibition of night work by pregnant women
takes effect only for a limited period in rela­
tion to the total length of the contract, and
reached the conclusion that, in those circum­
stances, it would be contrary to the objective
of protection pursued by Article 2(3) of
Directive 76/207 and would deprive that
provision of its effectiveness to allow a con­
tract to be declared void or be avoided
because the pregnant worker was tempo­
rarily prevented from performing the night
work for which she was taken on. The spe­
cific answer which it gave to the national
court was that the provisions of Directive
76/207 preclude an employment contract for
an indefinite period for the performance of
night-time work concluded between an
employer and a pregnant employee, both of
whom were unaware of the pregnancy, from
being held to be void on account of the
statutory prohibition on night-time work
which applies, by virtue of national law, dur­
ing pregnancy and breast-feeding, or from
being avoided by the employer on account
of a mistake on his part as to the essential
personal characteristics of the woman at the
time when the contract was concluded.
(3) The Webb judgment, in which the Court
held that the situation of a pregnant woman,
who is unfit to carry out work for which she
was recruited, cannot be compared with that
of a man who suffers the same incapacity for
medical or other reasons
41. On 14 July 1994 the Court gave judg­
ment in Webb, 27 in response to a request
submitted by the House of Lords for a pre­
liminary ruling on the interpretation of
Directive 76/207 to resolve a dispute before
it between an employer and a female worker,
recruited for an indeterminate period, who
had been dismissed when the employer dis­
covered she was pregnant on the ground that
he had engaged her for the specific purpose
— initially — of replacing another employee
during the latter's maternity leave. In that
judgment the Court stated that it was not
appropriate to consider, as requested by the
national court, whether the situation of a
woman who is incapable of performing the
task for which she was recruited, owing to a
pregnancy of which she became aware very
soon after signing the employment contract,
can be compared with that of a man who
suffers the same incapacity for medical or
27 — Cited in footnote 9 above.
I - 4208
BROWN v RENTOKIL
other reasons. In paragraph 25, it states: '...
pregnancy is not in any way comparable
with a pathological condition, and even less
so with unavailability for work on non­
medical grounds, both of which are situa­
tions which may justify the dismissal of a
woman without discriminating on grounds
of sex. Moreover, in the Hertz judgment ...
the Court drew a clear distinction between
pregnancy and illness, even where the illness
is attributable to pregnancy but manifests
itself after the maternity leave.'
The conclusion reached by the Court in
paragraph 27 was that, in circumstances such
as those of Mrs Webb, termination of a con­
tract for an indefinite period on account of
the woman's pregnancy cannot be justified
by the fact that she is prevented, on a purely
temporary basis, from performing the work
for which she has been engaged.
(4) The Larsson judgment, in which the
Court appears to have taken the view that it
is not discriminatory to take account, for the
purposes of dismissal, of a woman's incapac­
ity for work, attributable to pregnancy
before commencement of maternity leave
42. Against that background, on 29 May
1997 28 the Court gave judgment in the
Larsson case. 29 The Court was again asked,
this time by the Sø- og Handelsretten (Mari­
time and Commercial Court), Denmark, to
interpret Article 5(1) and Article 2(1) of
Directive 76/207, as applied to a worker who
had been dismissed after her maternity leave
owing to relatively long periods of sick leave
attributable to her condition, most of which
occurred during pregnancy and were covered
by medical certificates. I shall consider that
judgment in some detail.
Mrs Larsson had been employed by Føtex
Supermarked A/S in March 1990. In August
the following year she informed her
employer that she was pregnant. During her
pregnancy she took sick leave twice. The
first absence was for 18 days. The second
was on account of a pelvic prolapse attribut­
able to the pregnancy, and lasted about four-
and-a-half months. The birth took place on 2
April 1992. Her maternity leave, of 24
weeks, ended on 18 September 1992. She
then took annual leave until 16 October.
During her maternity leave and holidays,
Mrs Larsson continued to receive treatment
for the pelvic prolapse. She remained on sick
leave at the end of her holidays and was not
declared fit for work until 4 January 1993.
On 10 November 1992 — less than a month
after the end of her annual holidays — her
employer informed her by letter that she was
to be dismissed with effect from the end of
December. The reason for dismissal was 'the
28 — At which time the period for submitting observations in the
present case had expired. 29 — Case C-400/95 Larsson [1997] ECR 1-2757.
I - 4209
OPINION OF MR RUIZ-JARABO — CASE C-394/96
long periods of absence from work, together
with the fact that it is highly unlikely — for
health reasons — that in the future you will
recover the ability to perform your work in
a satisfactory manner'.
43. The national court asked whether the
abovementioned provisions of Directive
76/207 covered dismissals on account of
absence following the end of maternity leave
if the absence was attributable to an illness
which arose during pregnancy and after
maternity leave, it being assumed that the
dismissal took place after the end of the
maternity leave. It should be noted that the
national court's question concerned dismiss­
als for absences following the end of mater­
nity leave.
44. In the Opinion which I delivered in that
case 30 I suggested that the Court declare, on
the basis of the Hertz, Webb and
Habermann-Beltermann judgments, that, for
application of the principle of equal treat­
ment for men and women in relation to con­
ditions of employment, including those gov­
erning dismissal, laid down in Article 5(1) of
Directive 76/207, a line should be drawn at
the end of the maternity period. Thereafter,
any illness suffered by a woman, whether or
not obstetric in origin, will be covered by the
general regime applicable to all workers.
Conversely, periods of sick leave for health
problems attributable to pregnancy, before
confinement, cannot be equated, for the pur­
poses of dismissal, with a man's absences
through sickness.
My proposed answer to the question from
the national court was as follows:
Article 5(1), in conjunction with Article 2(1),
of Council Directive 76/207/EEC of 9 Feb­
ruary 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, does not preclude a
woman from being dismissed as a result of
periods of absence subsequent to her mater­
nity leave, where those periods of absence
are due to an illness which arose during
pregnancy and has continued both during
and after the maternity leave, unless, when
calculating the periods of absence for the
purposes of dismissal, account is taken of
periods of absence on medical grounds for
health problems attributable to pregnancy
prior to childbirth.
45. In response to the arguments of the
plaintiff in the main proceedings, who main­
tained that, in the Hertz judgment, a distinc­
tion had been established by reference to the
moment of onset or first appearance of the
illness, the Court of Justice stated in Larsson
that on that occasion '[i]t merely held that, in
the factual situation submitted to it on that
occasion, there was no reason to distinguish,
from the point of view of the principle of
equal treatment enshrined in the directive,
between an illness attributable to pregnancy
or confinement and any other illness. That
interpretation is confirmed, moreover, by the
absence of any reference in the operative part30 — Opinion delivered on 18 February 1997, [1997] ECR
I - 2759.
I - 4210
BROWN v RENTOKIL
of the Hertz judgment to the moment of
onset or first appearance of the illness'. 31
46. Later on in the judgment, details are
given of the position of the plaintiff in the
main proceedings, the Danish Government
and the Commission, to the effect that it was
contrary to Community law for an
employer, in calculating the period justifying
dismissal under national law, to be able to
take account both of absences occurring
between the beginning of the pregnancy and
the beginning of maternity leave and also the
duration of the maternity leave. Indeed, it
was apparent from the documents in the
main proceedings that, if those periods and
the four weeks which she took as leave were
discounted, Mrs Larsson had been unfit for
work for less than four weeks when she was
dismissed.
47. As regards maternity leave taken under
national law, the Court considered that a
woman is protected against dismissal due to
absence and to allow absence during such a
period to be taken into account as grounds
for a subsequent dismissal would be contrary
to the objective of permitting national mea­
sures concerning the protection of women,
particularly as regards pregnancy and mater­
nity, pursued by Article 2(3) of the Direc­
tive. 32 Outside the period of maternity leave
provided for by the Member States and in
the absence of national or Community pro­
visions affording women specific protection,
female workers do not enjoy, under Direc­
tive 76/207, protection against dismissal for
absence due to an illness originating in preg­
nancy.
48. The Court inferred from those state­
ments that '[t]he principle of equal treatment
enshrined in the Directive does not, there­
fore, preclude account being taken of a
woman's absence from work between the
beginning of her pregnancy and the begin­
ning of her maternity leave when calculating
the period providing grounds for her dis­
missal under national law' and stated in reply
to the national court that, without prejudice
to the provisions of national law adopted
pursuant to Article 2(3) of the Directive,
Article 5(1), in conjunction with Article 2(1),
of that Directive does not preclude dismiss­
als which are the result of absences due to an
illness attributable to pregnancy or confine­
ment, even where that illness arose during
pregnancy and continued during and after
maternity leave. 33
49. I confess that I find it rather difficult to
reconcile those statements with the line
taken in the case-law developed by the
Court of Justice up to the time of that judg­
ment, as set out in the foregoing paragraphs.
The Court appears not only to maintain in
31 — Larsson, cited in footnote 29 above, paragraph 17.
32 — Ibid., paragraph 22. 33 — Ibid., paragraphs 24 and 26.
I-4211
OPINION OF MR RUIZ-JARABO — CASE C-394/96
Larsson a position contrary to what is to be
inferred from a brief examination of its ear­
lier judgments, but also directly to contradict
the reading of those judgments which has
been propounded over time both by its
Advocates General and by the numerous
authors who have commented on the judg­
ments.
I note, once again with a degree of preoccu­
pation, that in paragraph 20, where it states
that the directive does not preclude dismissal
on the ground of periods of absence due to
an illness attributable to pregnancy or con­
finement, even where such illness first
appeared during pregnancy and continued
during and after the period of maternity
leave, the Court does not indicate at what
time the absences occurred.
Furthermore, where in paragraph 23 it states
that, outside the period of maternity leave, in
the absence of national Community provi­
sions, a female worker does not enjoy under
Article 76/207 any protection against dis­
missal due to absences attributable to an ill­
ness arising during pregnancy, the Court
likewise fails to make clear at what time the
absences occurred.
Similarly, in paragraph 24, when it concludes
that the principle of equal treatment
enshrined in the directive does not preclude
account being taken, for calculation of the
period justifying dismissal, of absences
occurring between commencement of the
pregnancy and commencement of maternity
leave, the Court does not say that the
absences were caused by an illness attribut­
able to pregnancy.
Finally, the operative part of the judgment
does not give a complete answer to the ques­
tion from the national court, which was con­
cerned with dismissals arising as a result of
absence following the end of maternity leave
if the absence is attributable to an illness
which arose during pregnancy and continued
during and after maternity leave, it being
assumed that the dismissal took place after
the end of the maternity leave, whereas the
Court answered that the provisions of the
directive do not preclude dismissals which
are the result of absences due to an illness
attributable to pregnancy or confinement,
even where the illness arose during preg­
nancy and continued during and after mater­
nity leave. Thus, the answer does not men­
tion either the time at which the absences
occurred or the time at which the dismissal
occurred.
50. I consider that, in view of its shortcom­
ings, the Larsson judgment does not provide
a sufficient basis for the view that the Court
of Justice wished to make a U-turn in its
case-law. I believe, therefore, that there is
very good reason, for the sake of legal cer­
tainty, for the Court to give a clear ruling on
the principle of equal treatment for men and
women in relation to dismissals of female
workers occurring during pregnancy or after
maternity leave, where account was taken of
periods of unavailability for work caused by
I-4212
BROWN v RENTOKIL
pregnancy, before the commencement of
maternity leave. That was precisely what
happened in Mrs Brown's case.
51. What is involved here, ultimately, is the
duty incumbent upon us all of progressively
removing all traces of the discrimination
which women have suffered over the centu­
ries, 34 a duty to which the institutions of the
European Union are so deeply committed.
C. The first question from the House of
Lords: dismissal of a pregnant woman
through incapacity for work attributable to
pregnancy
52. By this question, the national court
wishes to ascertain whether it is contrary to
the principle of equal treatment laid down
by Directive 76/207 to dismiss a worker,
while she is pregnant, for absence due to
incapacity for work attributable to preg­
nancy and whether the answer to the ques­
tion is affected by the fact that the dismissal
is based on a contractual provision entitling
the employer to dismiss employees, irrespec­
tive of gender, after a stipulated number of
weeks of continued absence.
53. There is no doubt that the application of
Community law would have precluded Mrs
Brown's dismissal if, when complications
arose in her pregnancy, the period prescribed
for transposition of Directive 92/85 into
national law had ended. However, that direc­
tive had not even been adopted. As a result,
Directive 76/207 contains the only applicable
Community law.
54. It will be remembered that Article 5 of
Directive 76/207 provides that application of
the principle of equal treatment with regard
to working conditions, including the condi­
tions governing dismissal, means that men
and women are to be guaranteed the same
conditions without discrimination on
grounds of sex.
Starting from the premiss that equality, as
defined by the Constitutional Court of one
of the Member States, "... is not a reality or
an abstract mathematical concept but rather
unequal treatment of that which is unequal
or equal treatment of that which is similar or
alike'35 and having regard to the settled case-
law of the Court of Justice to the effect that
'discrimination can arise only through the
34 — For example, Miguel de Cervantes Saavedra, in Chapter LI
of the first part or his work The Adventures of Don Quijote
of la Mancha, has the goatherd refer, when relating the
story of Leandra, to 'frivolity and failings natural to
woman-kind, who are generally ill-balanced and unsteady'.
He then takes an easier and, according to him, more proper
course, which is 'to curse the fickleness of women, their
inconstancy, their double-dealing, their unkept promises,
their broken faith, and last of all, the lack of judgment they
show in their choice of objects for their desires and affec­
tions' (Penguin, London 1950, translation by J. M. Cohen,
pp. 449 and 450).
35 — Judgment of the Spanish Constitutional Court 29/1987 of 6
March, paragraph 5(b) (BOE of 24 March 1987).
I-4213
OPINION OF MR RUIZ-JARABO — CASE C-394/96
application of different rules to comparable
situations or the application of the same rule
to different situations', 36 I shall now con­
sider whether the dismissal of a pregnant
woman on grounds of incapacity for work
arising from her condition occurs under the
same conditions as dismissal of a man for
incapacity for work of the same duration,
arising from an illness.
55. By contrast with the situation of Mrs
Hertz, whose unfitness for work, which was
of obstetric origin, commenced some time
after the end of her maternity leave, the com­
plications attendant upon Mrs Brown's preg­
nancy, which prevented her from working
for much of that period, became apparent at
a very early stage. It is clear from the docu­
ments before the Court that she was unfit
for work for the period of 26 weeks which
allowed her to be dismissed pursuant to the
condition included by Rentokil in employ­
ment contracts and that she did not give
birth until six weeks later. In view of the fact
that the average term of human gestation is
38 weeks, I calculate that she was able to
work for only the first five or six.
56. I wonder whether it is still necessary, at
this stage, to repeat the self-evident fact that
pregnancy is a situation which affects only
women, since only they can become preg­
nant. Pregnancy, besides being a biological
situation pertaining exclusively to women, is
a period limited in time, during which there
may occur not only the well-known phe­
nomenon of morning sickness but also com­
plications such as risks of miscarriage or pre­
mature contractions associated with stress,
which may compel the woman to rest abso­
lutely for periods which may extend from
two or three months to the whole of the
period of pregnancy.
57. This Court emphatically stated, in the
Hertz judgment cited so extensively above,
that 'the dismissal of a female worker on
account of repeated periods of sick leave
which are not attributed to pregnancy or con­
finement does not constitute direct discrimi­
nation on grounds of sex, inasmuch as such
periods of sick leave would lead to the dis­
missal of a male worker in the same circum­
stances'. 37
58. Can it be said, however, that the dis­
missal of a pregnant woman on account of
repeated periods of sick leave attributable to
pregnancy occurs under the same conditions
as the dismissal of a man who has been on
sick leave for the same period? In my opin­
ion the answer is no.
36 — Case C-279/93 Schumacher [1995] ECR I-225, paragraph
30. 37 — Cited in footnote 3 above, paragraph 14.
I-4214
BROWN v RENTOKIL
59. Without wishing to meddle in matters
which are the province of doctors, I should
make it clear that, although, as this Court
stated in Webb, pregnancy is not in any way
comparable with a pathological condition, 38
no one is unaware of the existence of 'high-
risk pregnancies' which occur — the follow­
ing being examples, not an exhaustive list —
when there is a history of premature or still­
births, when the placenta is lower than nor­
mal, when the woman has undergone in vitro
fertilisation treatment, and in cases where the
woman suffers from a heart condition or dia­
betes. The main characteristic of such preg­
nancies is not that they cause the woman to
be 'ill' but that, normally, they require her to
remain under strict medical supervision and,
in some of the cases mentioned above, to rest
absolutely for several months or, sometimes,
throughout her pregnancy. 39
I cannot share the view that, in situations of
that kind, where the woman is not suffering
from any illness but is simply pregnant, it
can be said that, in the event of dismissal for
repeated absences, she is dismissed under the
same conditions as a man who has been
absent through illness for the same period of
time. The same reasoning will apply where
the incapacity for work derives from the fact
that pregnancy has aggravated an existing ill­
ness or brought about conditions which may
be classified as real illness.
60. Whilst the situation of a pregnant
worker whose pregnancy prevents her from
working and that of a male worker who is ill
coincide in so far as neither of them can, for
a period, carry out the tasks involved in her
or his employment, important differences
distinguish them: only women may find
themselves at some time during their work­
ing life in a situation where they are pre­
vented from working because of incapacity
arising from a pregnancy; and, in most cases,
a woman's incapacity for work arising from
pregnancy will end on a date known in
advance with more or less accuracy, when
she gives birth.
61. These factors appear to have been taken
into account by the domestic law applicable
in most Member States at the time of the
material events in this case, which was fairly
similar — only the legislation in the United
Kingdom and Ireland differed radically.
Thus, in Germany there was specific protec­
tion for women from the start of pregnancy
until after confinement, whereby in that
period dismissal was subject to administra­
tive authorisation; in Denmark, the Ministry
of Employment considered it discriminatory
to take account, for the purposes of dis­
missal, of absences due to incapacity for
work attributable to pregnancy, before a
woman gave birth; in France, the employer
could not dismiss a woman during preg­
nancy, during maternity leave or during the
four weeks thereafter; in Greece, it was
prohibited to dismiss a worker during
38 — Cited in footnote 9 above, paragraph 25.
39 — Women whose pregnancy causes unfitness for work of such
a duration arc, fortunately, few in number: it is calculated
that they represent 10% to 15% of cases.
I-4215
OPINION OF MR RUIZ-JARABO — CASE C-394/96
pregnancy or within a year after she gave
birth and she could not be dismissed for
absences due to unfitness for work attribut­
able to pregnancy or confinement; in Italy,
the prohibition of dismissal extended from
the start of the pregnancy until the end of
the first year of the child's life, the rule hav­
ing been interpreted by case-law to the effect
that, during that period, a woman likewise
could not be dismissed for exceeding the
maximum permitted number of days' sick
leave; in the Netherlands, it was prohibited
to dismiss a woman during pregnancy or
maternity leave or within six weeks there­
after; in Portugal, it was only possible to
dismiss a worker through incapacity for work
in cases of absolute and definitive incapacity
and, as regards the rules applicable to preg­
nant women, dismissal was prohibited where
their incapacity for work was attributable to
pregnancy or an illness associated with it.
Finally, although in Spain there was no spe­
cific legislation for the protection of preg­
nant women against dismissal, the effect of
the case-law was that a woman could not be
dismissed for absences arising from unfitness
for work attributable to difficult pregnancies
or illnesses associated with pregnancy.
As regards the three new Member States, in
Austria specific protection existed for
women from the start of the pregnancy until
after confinement, whereby during that
period dismissal was subject to judicial
authorisation; in Finland, for a worker to be
dismissed on account of incapacity for work,
there had to be a substantial and permanent
reduction of her ability to work; finally, in
Sweden, incapacity for work through illness
did not justify dismissal if it was probable
that the worker would recover and a woman
could not be dismissed on account of unfit­
ness for work resulting from pregnancy.
62. The respondent in the main proceedings
contends that Mrs Brown's dismissal was
due to the 'abnormal' nature of her preg­
nancy. It maintains that to treat her, on
account of the origin of her unfitness for
work, differently from pregnant women
whose pregnancy did not prevent them from
working or from other employees who were
ill would constitute positive discrimination
applicable only to a particular section of
women.
I cannot agree with that assertion for two
reasons. First, because it must be borne in
mind that Directive 76/207 establishes the
principle of equal treatment for men and
women regarding working conditions,
including conditions governing dismissal,
and that, in seeking a basis of comparison, it
is inappropriate to draw parallels or distinc­
tions between two pregnant women experi­
encing more or less easy or problematical
pregnancies — the point of reference contin­
ues to be the male worker. Secondly, because,
as I indicated in the foregoing paragraph, for
the purposes of dismissal the situation of a
pregnant woman whose pregnancy prevents
her from working and that of a man who is
unwell are not comparable, in the light of the
principle of equal treatment laid down by
that directive.
I - 4216
BROWN v RENTOKIL
63. Nor do I agree with the position of the
United Kingdom, which proposes distin­
guishing between, on the one hand, dismissal
on account of ordinary risks and disorders
normally inherent in pregnancy and confine­
ment, the examples given by it being absence
from work for routine medical examinations
and minor absences for ailments such as
morning sickness, and, on the other hand,
dismissal of a woman on account of an ill­
ness, whether or not linked with pregnancy.
I think the origin of that suggested differen­
tiation is points 47 and 48 of Advocate Gen­
eral Darmon's Opinion in the Dekker and
Hertz cases, where he considered, in the
Hertz case, the possibility of determining the
duration of protection linked with mater­
nity. 40
64. In my opinion, quite apart from the fact
that it is doubtful whether a woman would
be dismissed on account of absences from
work attributable to routine medical exami­
nations or minor absences due to morning
sickness, 41 the position taken by the United
Kingdom was arrived at by interpreting that
part of the Opinion out of context. As I have
already stated in point 30 above, Mr Darmon
in fact suggested distinguishing between, on
the one hand, normal risks of pregnancy and
confinement, namely the usual complications
accompanying such events, which sometimes
result in the grant of an additional period of
maternity leave, and should qualify for
Community protection inasmuch as they are
specific to motherhood, and, on the other,
medical conditions which are not associated
with the ordinary risks of pregnancy and
should be treated in the same way as 'ordi­
nary' sickness.
Now, it must not be forgotten that Mrs
Hertz had been dismissed on account of
incapacity for work which, although caused
by her confinement, did not prevent her
from working until one year after the end of
her maternity leave. To my mind, that is why
the Advocate General adds, at a later stage,
that, where a female worker has exhausted
her entitlement to all legally prescribed types
of maternity leave, periods of absence
through sickness, even though they may be
traced back to her pregnancy or confine­
ment, cannot be regarded as included among
the normal risks of maternity.
65. I consider, therefore, that, if one wishes
to draw a distinction between the normal
risks of pregnancy and confinement and
medical conditions which do not reflect the
ordinary risks of pregnancy, it is necessary to
take a chronological approach: the former
will, necessarily, be those which arise while
the woman is in one of those situations, that
is to say whilst she is pregnant or on mater­
nity leave, whereas the latter will be all those
which arise after maternity leave, even
though their cause may be traceable back to
the pregnancy or confinement.
40 — Cited in footnote 17 above.
41 — Morning sickness may be violent and extend beyond the
first three months, requiring hospitalisation in some cases.
I-4217
OPINION OF MR RUIZ-JARABO — CASE C-394/96
66. For the reasons given above, I consider
that the dismissal of a woman whilst she is
pregnant, on account of unfitness for work
caused by her pregnancy, by taking into con­
sideration a situation in which only women
can find themselves, constitutes direct dis­
crimination contrary to Article 5(1) of
Directive 76/207.
67. I wish to make it clear that the interpre­
tation I propose is, in my opinion, the only
possible interpretation of Article 5(1), in
conjunction with Article 2(1), of Directive
76/207 and of the line followed in the case-
law of the Court of Justice until the judg­
ment in Larsson. If that were not the case,
and the future of an employed woman, on
becoming pregnant, could depend on
whether or not her pregnancy involved
excessive complications, I would be obliged
to state, paraphrasing Papinian, that despite
the passage of the centuries 'there are many
points in our [Community] law in which the
condition of females is inferior to that of
males'. 42
68. The national court also asks whether that
answer is affected by the fact that the dis­
missal is based on a contractual provision
entitling the employer to dismiss a worker,
regardless of gender, after a specific number
of weeks of continued absence.
69. I believe it can be inferred from the fore­
going reasoning that the fact that the dis­
missal is based on a contractual provision
entitling the employer to dismiss a worker,
regardless of gender, after a specific period of
sick leave, has no impact on the foregoing
answer.
That contractual provision, which applies to
men and women alike, by simply assimilat­
ing incapacity for work attributable to preg­
nancy to incapacity for work attributable to
an illness, introduces direct discrimination
on grounds of sex, by applying the same rule
to different situations, in that it takes into
consideration, for calculation of periods of
incapacity for work justifying dismissal, an
obstacle to work which can affect only
women.
70. The fact that the provision is contained
in the employment contract is irrelevant for
the present purposes. First, Article 5(2)(b) of
Directive 76/207 requires the Member States
to ensure that any provisions contrary to the
principle of equal treatment which are
included, inter alia, in individual contracts of
employment are, or may be, declared null
and void. Secondly, the Court of Justice has
held that 'when it interprets and applies
national law, every national court must pre­
sume that the State had the intention of ful­
filling entirely the obligations arising from
the directive concerned'. 43 Finally, the
42 — Papinianus libro trigensimo primo quaestionum. 'In mukis
iuris nostri articulis deterior est condicio feminarum quam
masculorum. ' The Digest of Justinian, University of Penn­
sylvania Press, Vol I, Book One (Human Status), p. 16.
43 — Case C-334/92 Wagner Miret [1993] ECR I-6911, para­
graph 20.
I-4218
BROWN v RENTOKIL
Member States' obligation, by virtue of a
directive, to achieve the result pursued by it,
and its duty under Article 5 of the Treaty to
take all appropriate measures, whether gen­
eral or particular, to ensure fulfilment of that
obligation, apply to all the authorities of the
Member States, including, within their juris­
diction, judicial authorities. It follows that,
in applying national law, whether the provi­
sions in question were adopted before or
after the directive, the national court called
upon to interpret it is required to do so, as
far as possible, in the light of the wording
and the purpose of the directive in order to
achieve the result pursued by the latter and
thereby comply with the third paragraph of
Article 189 of the Treaty. 44
71. In view of the answer which I propose
be given to the national court in response to
the first question, it is unnecessary to answer
the second. I shall nevertheless examine it, in
case the Court does not share my view.
D. The second question from the House of
Lords: dismissal of a pregnant woman during
the period in which, had she fulfilled the
requirements laid down by national law, she
could have absented herself from work on
account of pregnancy and confinement
72. By its second question, the national
court asks whether it is contrary to the
principle of equal treatment laid down by
Directive 76/207 to dismiss a female
employee as a result of absence through ill­
ness arising from pregnancy who does not
qualify for the right to absent herself from
work on account of pregnancy or confine­
ment for the period specified by national law
because of insufficient length of service,
where dismissal takes place during that
period, and whether it makes any difference
to the answer to be given to that question
that the employee was dismissed under a
contractual provision entitling the employer
to dismiss any employee, irrespective of gen­
der, after a stipulated number of weeks of
continued absence.
73. From the information in the order for
reference, I infer that what the national court
wishes to ascertain, by asking that question,
is whether Directive 76/207 must be con­
strued as having imposed on Member States
the obligation to provide, in domestic law,
that female workers must be entitled to a
period of absence from work merely because
they have given birth, and that no other con­
ditions may be imposed on them in that
regard.
74. The purpose of Directive 76/207 is to
apply in the Member States the principle of
equal treatment for men and women regard­
ing access to employment, vocational train­
ing and promotion and working conditions.
However, by virtue of Article 2(3) of the
directive, its provisions are to be without44 — Case C-106/89 Markasing [1990] ECR I-4135, paragraph 8.
I-4219
OPINION OF MR RUIZ-JARABO — CASE C-394/96
prejudice to the grant by Member States of
specific rights for women as regards preg­
nancy or maternity. It thus only contem­
plates the adoption of measures for the pro­
tection of women in such circumstances as
an exception to that principle; it does not
oblige the Member States to legislate to that
effect, nor does it specify what the rights in
question must be or the conditions which
may be imposed for them to be exercised.
75. The course followed by this Court has
been to take the view that Article 2(3) of
Directive 76/207, by reserving to Member
States the right to retain or introduce provi­
sions intended to protect women in connec­
tion with 'pregnancy and maternity', recog­
nises the legitimacy, in terms of the principle
of equal treatment, of protecting a woman's
biological condition during pregnancy and
thereafter, and of protecting the special rela­
tionship between a woman and her child
over the period which follows pregnancy
and childbirth. 45
76. It is also important to bear in mind that
the Court held in Hertz that Directive
76/207 'does not envisage the case of an ill­
ness attributable to pregnancy or confine­
ment. It does, however, admit of national
provisions guaranteeing women specific
rights on account of pregnancy and mater­
nity, such as maternity leave. During the
maternity leave accorded to her pursuant to
a national law, a woman is accordingly pro­
tected against dismissal due to absence. 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 confinement occur'. 46
77. The United Kingdom legislation appli­
cable at the material time gave a worker the
right to absent herself from work from the
beginning of the 11th week before confine­
ment and the right to return to work within
the 29 weeks following childbirth, if she ful­
filled certain conditions, namely, that she had
been employed in the company until the
beginning of that eleventh week; that at that
time she had been continuously employed
for a period of not less than two years; that
she had observed the prescribed procedure
for notification to her employer; and, at the
latter's request, that she had supplied a medi­
cal certificate indicating the expected week of
confinement. 47
45 — Case 184/83 Hofmann v Banner Ersatskasse [1984] ECR
3047, paragraph 25; Habermann-Beltermann, cited in foot­
note 12 above, paragraph 21, and Webb, cited in footnote 9
above, paragraph 20.
46 — Cited in footnote 3 above, paragraph 15.
47 — The legislation concerned is extraordinarily complex, so
much so that the Employment Appeal Tribunal exclaimed,
in Lavery v Plessey Telecommunications Ltd [1982] ICR
373, at 379: These statutory provisions [on maternity
rights] are of inordinate complexity exceeding the worst
excesses of a taxing statute; we find that especially regret­
table bearing in mind that they are regulating the every-day
rights of ordinary employers and employees. We feel no
confidence that, even with the assistance of detailed argu­
ments from skilled advocates, we have now correctly
understood them: it is difficult to see how an ordinary
employer or employee is expected to do so.'
I - 4220
BROWN v RENTOKIL
According to the documents before the
Court, if Mrs Brown had been working for
Rentokil for two years at the beginning of
the eleventh week before the expected week
of her confinement, she would have been
able to absent herself from work on account
of her approaching maternity before accu­
mulating an absence totalling 26 weeks
which, in her case, gave rise to dismissal. It
must therefore be assumed that if her right
to absent herself had not been conditional
upon fulfilment of the requirements men­
tioned above, she would have given birth
and, within the 29 weeks following her con­
finement, would have been able to return to
work.
Moreover, it has become apparent in the
course of the proceedings that Mrs Brown
was entitled to receive maternity benefit
from the State at the lower rate.
78. I wonder whether it must be considered
that a woman who is close to giving birth is
protected from dismissal on account of
absence because, under national legislation,
her contract is suspended for a specific
period of time, which necessarily implies that
she is entitled to return to her previous job,
or whether it is sufficient that she can cease
working and be entitled to receive a benefit
from the State, without any entitlement to
re-engagement.
79. In my opinion, the only period that can
be regarded as 'maternity leave' within the
meaning of the case-law of the Court, that is
to say the period in which a woman is in a
specific situation requiring her to be afforded
special protection, which is not comparable
either with that of a man or with that of a
woman who is actually working 48 and in
which she is protected against dismissal on
account of absence, is the period laid down
by national law as a specific employment
right enabling the woman to cease working
for a period of a specified duration, during
which she is entitled to receive all or part of
her remuneration or to receive certain
income in the form of a social security ben­
efit, without thereby losing her job.
80. However, the simple right available to
Mrs Brown or to any other female worker
who, like her, did not fulfil the necessary
conditions to secure suspension of her
employment contract, to receive for a maxi­
mum period of 18 weeks a maternity benefit
from the State if she stopped work in order
to give birth, without the possibility of
re-engagement, does not constitute, in rela­
tion to the principle of equality, a specific
employment right intended to protect the
biological condition of a woman or the rela­
tionship between mother and child in the
period following confinement.
48 — Case C-342/93 Gillespie and Others v Northern Health and
Social Services Board and Others [1996] ECR I-475, para­
graph 17.
I - 4221
OPINION OF MR RUIZ-JARABO — CASE C-394/96
Indeed, the right to cease working for an
indefinite time, receiving for a limited period
a financial benefit from the State, is not
reserved to women, nor is it necessary to be
pregnant or to have given birth in order to
exercise it.
81. Therefore, the eleven-week period pre­
ceding the expected date of confinement, in
which, had she fulfilled the requisite condi­
tions, Mrs Brown could have exercised her
right to absent herself from work, cannot in
my view be regarded as a period during
which she was protected against dismissal on
account of absence.
82. Furthermore, Directive 92/85, which
lays down specific measures of protection
within the Community for workers who are
pregnant, have recently given birth or are
breast-feeding, and requires the Member
States to provide in their legislation for a
continuous period of maternity leave of at
least 14 weeks, of which at least two weeks
must be compulsory, being allocated before
or after confinement, had not been adopted
at the material time.
83. For those reasons, in the event of this
Court considering that it is not discrimina­
tory to dismiss a pregnant woman on
account of absences arising from an illness
attributable to pregnancy, it will have to be
concluded that Directive 76/207 does not
preclude dismissal of such a person when she
is not entitled to absent herself from work
on account of pregnancy or confinement for
the period specified by national law because
of insufficient length of service, where dis­
missal takes place during that period.
84. Finally, the fact that the woman's dis­
missal is based on a contractual provision
entitling the employer to dismiss any
worker, regardless of gender, after a stipu­
lated number of weeks of continued absence
makes no difference to the answer which I
suggest for the second question.
VII — Conclusion
In view of the foregoing considerations, I propose that the Court of Justice
answer the first question from the House of Lords as follows:
(1) (a) Dismissal of a woman whilst she is pregnant , on account of her incapacity
for work as a result of pregnancy, is contrary to Article 5(1) in conjunction
I - 4222
BROWN v RENTOKIL
with Article 2(1) of 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 promo­
tion, and working conditions.
(b) The fact that the dismissal is based on a contractual provision entitling the
employer to dismiss an employee, regardless of gender, after a stipulated
number of weeks of continued absence does not affect the foregoing
answer in any way.
In the event that, on the contrary, the Court of Justice considers that it is not
discriminatory to dismiss a pregnant woman on account of incapacity for work
attributable to her pregnancy, I suggest the following answer to the second ques­
tion:
(2) (a) Article 5(1), in conjunction with Article 2(1), of 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 does not pre­
clude dismissal of a pregnant woman who is not entitled to absent herself
from work on account of pregnancy or confinement for the period speci­
fied by national law because of insufficient length of service where dis­
missal takes place during that period.
(b) The fact that the dismissal is based on a contractual provision entitling the
employer to dismiss an employee, regardless of gender, after a stipulated
number of weeks of continued absence does not affect the foregoing
answer in any way.
I - 4223