WRITTEN QUESTION E-3337/97 by David Hallam (PSE) to the Commission (22 October 1997)

Subject: Payment of Statutory Maternity Pay (United Kingdom): 16-week loophole

Is the Commission aware that, under United Kingdom regulations, a woman who is less than sixteen weeks pregnant when she moves from one job to another is not entitled to Statutory Maternity Pay from either previous or new employer; yet if she had been pregnant for 25 weeks when taking up a new post her old employer would have been liable, and if she had fallen pregnant the day she took up a new post her new employers would be liable to pay, and claim back from national social security?

Does the Commission consider that this situation is grossly unjust, particularly when women whose income is the main source of revenue for a family, and who have not had a break in employment, find themselves in this situation?

Does the Commission consider that if the employer is, by European law, not permitted to allow his judgment to employ or not to employ to be clouded because a woman is pregnant (Dekker case), a women employee should then be forced into the position of turning a job down purely because she will not be eligible for SMP at 90 per cent for six weeks?

In the European Court's decision in the Dekker case (EOR35), as Advocate-General famously put it: 'Maternity can never - excuse the truism - concern anyone but women: to take it into account in justifying a refusal of engagement is therefore, by nature, discrimination directly based on sex'. Would the Commission agree that it is equally discriminating for a woman to be forced to refuse engagement on account of maternity?

In the United Kingdom, the basic safety net provided for women not qualifying for SMP is £52.50 per week for 12 weeks. In the light of the ECJ ruling in the Gillespie case that the equal pay directive neither requires full pay nor lays down criteria for determining the amount payable, provided that amount is not so low as to jeopardise the purpose of maternity leave, would the Commission not agree that the UK safety net for women who fall into the 16-week loophole is so low as to jeopardise the purpose of maternity leave, most particularly for women whose income is the main source of revenue for a family?

Supplementary answer given by Mr Flynn on behalf of the Commission (16 March 1998)

Further to its answer of 21 November 1997 ((OJ C 134, 30.4.1998, p. 140. )), the Commission is now in a position to provide the following information.

As the Commission informed the Honourable Member, it has contacted the UK authorities in order to obtain further information on the conditions of application of the rules governing statutory pay during maternity leave.

In their reply, the UK authorities point out that Article 11(4) of 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 ((OJ L 348, 28.11.1992. )) authorises the Member States to make the maintenance of pay during maternity leave contingent upon the worker concerned fulfilling the conditions of eligibility for such benefits under national legislation, although these conditions may not provide for periods of previous employment in excess of 12 months immediately prior to the presumed date of confinement.

The fact that UK legislation makes entitlement to statutory maternity pay conditional on a continuous period of employment of 26 weeks ending the week immediately preceding the fourteenth week before the presumed week of confinement can therefore not be regarded as being contrary to Directive 92/85/EEC.

The Commission would, however, also draw the Honourable Member's attention to the fact that workers who are not entitled to statutory maternity pay may receive a maternity allowance or other benefits if they fulfil the conditions of entitlement to these benefits under UK legislation.