Report from the Commission on the implementation of council directive 92/85/eec of 19 october 1992 on the introduction of measures to encourage improvements in the health and safety at work of pregnant workers and workers who have recently given birth or are breastfeeding
Date: 1999-03-15
Institutions: European Commission
Subjects: female work, motherhood, occupational health, occupational safety, women's rights

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 15.03.1999
COM(1999)100 final

REPORT FROM THE COMMISSION

ON THE IMPLEMENTATION OF COUNCIL DIRECTIVE 92/85/EEC OF 19
OCTOBER 1992 ON THE INTRODUCTION OF MEASURES TO
ENCOURAGE IMPROVEMENTS IN THE HEALTH AND SAFETY AT
WORK OF PREGNANT WORKERS AND WORKERS WHO HAVE
RECENTLY GIVEN BIRTH OR ARE BREASTFEEDING

TABLE OF CONTENTS

EXECUTIVE SUMMARY ........................................................................................3

INTRODUCTION .....................................................................................................5

PERSONAL SCOPE .................................................................................................6

ASSESSMENT OF RISK ..........................................................................................7

ACTION FURTHER TO THE ASSESSMENT .........................................................8

NIGHTWORK...........................................................................................................9

MATERNITY LEAVE ............................................................................................ 10

ANTE-NATAL EXAMINATIONS ......................................................................... 13

PROHIBITION OF DISMISSAL............................................................................. 13

EMPLOYMENT RIGHTS....................................................................................... 15

A. During leave on health and safety grounds..................................................... 15

B. During maternity leave .................................................................................. 16

CONCLUSION ....................................................................................................... 19

Personal Scope................................................................................................... 20

Employment Rights............................................................................................ 20

2

1.

EXECUTIVE SUMMARY

Directive 92/85/EEC was adopted on 19 October 1992 and had to be implemented in
the Member States by 19th October 1994. It identifies pregnant workers and workers
who have recently given birth or are breastfeeding as a group of workers who face
specific risks in the work place. For this reason Community-wide provisions covering
the health and safety at work of this group, as well as certain employment rights
connected to pregnancy, were adopted.

The Directive applies to all pregnant workers, and the Member States have ensured
that the public and private sectors are covered, as well as women on both indefinite
and fixed term contracts. The definitions in the Directive of breastfeeding worker and
worker who has recently given birth refer to national law and therefore vary between
the Member States, as does the requirement to formally notify the employer. These
differences may lead to differing levels of protection for breastfeeding workers and
workers who have recently given birth, which may be a matter of concern.

The Directive provides that an assessment must be made of the work place and the job
of pregnant or breastfeeding women and women who have recently given birth.
Should the assessment reveal a risk to health and safety, all reasonable steps must be
taken to ensure that the risk is avoided. All the Member States had some legal
provisions on the health and safety of pregnant workers, and the implementation of
the Directive has, on the whole, supplemented the existing provisions. However, it has
given clear legal status to aspects of health and safety protection, such as the right to
paid leave if it is impossible to alter a woman's job or working conditions so as to
avoid any identified risk to health and safety, and the right to paid time off for ante
natal examinations.

Pregnant or breastfeeding women, or those who have recently given birth may not be
obliged to work nights if doing so poses a risk to health and safety. Most Member
States now provide for women covered by the Directive to have the possibility to
transfer to day time work if a risk is identified in working at night.

The Directive prohibits the dismissal of a pregnant woman or a woman on maternity
leave, unless it
is for reasons unconnected with the pregnancy. Although such
dismissals were already unlawful in most Member States, the requirement that the
employer provide written reasons for any dismissal of a woman during pregnancy or
maternity leave strengthens the protection afforded to pregnant women and women on
maternity leave.

The minimum length of maternity leave permitted under the Directive is 14 weeks.
Maternity leave, not including any sort of paternity or parental leave, varies from
14 weeks in the UK to 28 weeks in Denmark. The combination of lengthy compulsory
maternity leave with unpaid leave may need to be re-examined. The amount women
on maternity leave are paid, and the period for which they are paid, also varies widely.
In Austria and the Netherlands women are entitled to 100% of their previous wage
throughout their maternity leave, in the UK, Greece and Belgium a percentage of the
woman's previous wage is paid for part of the maternity leave. In other Member States
varying amounts of social security benefits are paid during maternity leave. All the
to remuneration during maternity leave to
Member States subject entitlement

3

conditions linked to length of service, residence or insurance. The effect of these
conditions on the ability of women to enjoy paid maternity leave needs further study,
as does their compatibility with provisions on non-discrimination and the free
movement of workers. This study of the implementation of the Directive has revealed
other difficulties which may limit the protection afforded to female workers who
come within its scope, and the Commission will be reflecting on how to make
progress in these areas.

The Directive has,
implemented by the Member States.
Infringement procedures have been launched against a number of Member States for
the incorrect implementation of certain provisions of the Directive.

in general, been well

4

2.

INTRODUCTION

Directive 92/85/EEC of 19 October 1992 on the introduction of measures to
encourage improvements in the health and safety at work of pregnant workers and
workers who have recently given birth or are breastfeeding was adopted on
19th October 1992 under Article 118a of the EEC Treaty. It was the tenth individual
Directive to be adopted under the framework Directive 89/391/EEC on health and
safety at work. Pregnant workers, workers who have recently given birth or workers
who are breastfeeding are a group who face specific risks in the work place and
therefore need specific health and safety protection, as set out in the Directive.

Before the entry into force of this Directive, the rights of pregnant workers were
covered by national law. Their right to non-discrimination had been dealt with under
other Community equality legislation (in particular Article 119 EEC on equal pay and
Directive 76/207 on the implementation of the principle of equal treatment for men
and women as regards access to employment, vocational and promotion, and working
conditions) and a large body of case law of the European Court of Justice had built
up. In this context, mention should be made of a judgment given by the European
Court of Justice, Boyle v Equal Opportunities Commission,1 which concerns the
employment rights of women on maternity leave, and is the first judgment of the
Court to analyse the provisions of Directive 92/85/EEC.The main points of the
judgment are given later in this report.

In accordance with Article 14(1) of the Directive, it had to be implemented in the
Member States by 19 October 1994. Article 14(3) provides that the Member States
must communicate to the Commission the provisions of national law which they have
adopted in the field governed by the Directive. The Directive is implemented in the
Member States by constitutional provisions, laws, regulations and decrees, as well as
collective agreements and detailed guidelines from health and safety bodies.
Infringement proceedings under Article 169 EC Treaty were initiated against
Portugal, Italy, France, Germany, Belgium, Greece and Luxembourg in 1995 for non-
communication of national
these proceedings were
resolved except for those against Luxembourg: Case No C-409/97 Commission v
Luxembourg was referred to the European Court of Justice in December 1997.
Luxembourg passed a law on 7 July 1998 amending its 1975 law on the protection of
pregnant women at work so as to give effect to the Directive and the new law was
notified to the European Union in September 1998. As a result the infringement
proceedings against Luxembourg have been discontinued, although the Opinion of
Advocate-General Saggio, given on 2 October 1998 found that Luxembourg had
failed in its obligations under Article 169 of the Treaty in not adopting national
measures implementing the Directive within the time scale laid down.

implementing measures. All

The Member States were also required, under the second paragraph of Article 14(4) of
the Directive, to submit to the Commission within 4 years of the adoption of the
Directive a report on its practical implementation, indicating the views of both sides
of industry. In September 1996 the Commission sent to the Member States a detailed

1 Case C-411/96, judgment 27 October 1998.

5

questionnaire on the implementation of the Directive. The replies of the Member
States to the questionnaire should be considered as the reports required under
Article 14(4) of the Directive. However, it should be noted that the views of the social
partners were specifically noted only in the reports from Austria, Ireland, Portugal and
the Netherlands.

This Report is based upon the implementing measures notified to the Commission by
the Member States and their replies, sent in 1996 and 1997, to the questionnaire.
However, the Member States gave differing degrees of detail in their responses to the
questionnaire and this is to some extent reflected in the report. Furthermore, it should
be noted that the Greek and Dutch authorities did not reply to the questionnaire and,
in the case of the Netherlands, did not send national legislation, making it difficult to
assess their implementation of the Directive. Because of the infringement proceedings
against Luxembourg the questionnaire referred to above was not sent
to the
Luxembourg authorities. As a result the information on Luxembourg contained in this
report is derived solely from the legislation and its recent amendments, as sent to the
Commission.

This Report from the Commission sets out the implementation of the Directive in the
Member States,
including Austria, Sweden and Finland which acceded to the
European Union after the adoption of the Directive. In accordance with Article 14(5)
this Report is submitted by the Commission to the European Parliament, the Council
and the Economic and Social Committee.

Annexed to this Report are Directive 92/85/EEC, the questionnaire sent by the
Commission to the Member States and a list of the national implementing measures.

3.

PERSONAL SCOPE

In summary, Article 2 of the Directive defines pregnant workers as those workers who
inform their employer of their condition, in accordance with national legislation or
practice. Workers who have recently given birth and workers who are breastfeeding
are defined as those workers who have recently given birth or are breastfeeding,
within the meaning of national legislation or practice and who inform their employer
of their condition, in accordance with national legislation or practice.

Most of the Member States do not define pregnant workers, but a number define
workers who have recently given birth or workers who are breastfeeding. An
exception to this is Luxembourg, which specifically defines a pregnant woman as a
woman who is pregnant and has informed her employer by way of a medical
certificate sent by registered post, and is affiliated to a social security scheme in
Luxembourg. To require affiliation to a social security scheme to come within the
personal scope of the Directive is contrary to Article 2(a), which does not allow any
conditions to be imposed. Such a condition would be allowed only in connection with
payment during health and safety or maternity leave under Article 11(4). The
Commission has decided to launch further
infringement proceedings against
Luxembourg for this breach of the Directive. Greece defines workers who have
recently given birth as those who have given birth in the last two months, and
breastfeeding worker covers women who breastfeed their baby up to the age of one
year. Similarly, in Ireland, recently given birth means within the last 14 weeks and

6

breastfeeding covers 6 months from the date of birth. In Portugal recently given birth
means within 98 days, in Sweden the period is 14 weeks and in the UK it is 6 months.
In Spain, women are assumed to breastfeed for 9 months.

Most Member States require the worker to inform her employer of her pregnancy, or
of the fact that she has recently given birth or is breastfeeding and protection does not
begin until this is done. In the UK, although there is no general requirement to inform
the employer, unless he has been informed he is not required to undertake risk
assessments and in Finland, Belgium and France, whilst there is no general legal
requirement to inform the employer, entitlement to maternity rights and protection is
dependent upon the employer being informed. In Spain a worker whose employer is
aware of her pregnancy, even if they have not been officially informed of it, comes
within the scope of the maternity legislation. In Ireland and in Portugal, the employer
must be informed in writing and can demand a medical certificate confirming the
woman's condition. In Luxembourg the woman must send her employer by registered
post a medical certificate that she is pregnant and/or breastfeeding. In Austria the
Labour Inspectorate and the employer must be informed if a worker is pregnant and
the employer can demand a medical certificate.

All the Member States cover private and public sector workers (although the extent of
their rights may vary considerably) and workers on fixed-term and temporary
contracts. From the information supplied by the Belgian authorities, workers who do
not have a contract of employment but who provide services under another person's
authority are also covered.

However, in Austria, trainee nurses are not covered by the national implementation
and student dentists and probationary teachers are only partially covered. In Greece,
the armed forces, the police and domestic servants are not covered by the national
implementation of the Directive. In Gibraltar, the relevant Regulations only cover
women whose expected date of childbirth is after 5th May 1996.

The Directive applies to pregnant workers, workers who have recently given birth and
workers who are breastfeeding in all fields and occupations, with no exceptions. The
exclusion of certain groups of women from the scope of the Directive is therefore
contrary to Community law and infringement proceedings will be commenced against
Austria and Greece in this regard. Similarly, the late transposition of the Directive's
provisions into the law of Gibraltar will be the subject of infringement proceedings.

4.

ASSESSMENT OF RISK

In accordance with Article 3(1) of the Directive, the Commission, in conjunction with
the Member States and assisted by the Advisory Committee on Safety, Hygiene and
Health Protection at Work is in the process of drawing up guidelines on the
assessment of risks to the workers covered by the Directive and these should be
adopted by the beginning of 1999.

Article 4 requires that the employer complete an assessment of the risk of exposure to
pregnant workers, workers who are breastfeeding or workers who have recently given

7

birth from the non-exhaustive list of agents, processes and working conditions in
Annex 1.

All the Member States have existing requirements under their general health and
safety laws for assessment of risk to workers and most have amended their legislation
to take specific account of pregnant workers and the non-exhaustive list of agents,
processes and working conditions in Annex 1 of the Directive. The Luxembourg Law
of 7 July 1998 prohibits assigning pregnant women or women who have given birth in
the last 3 months or women who are breastfeeding to certain tasks where they will be
exposed to certain dangerous working conditions or agents and a non-exhaustive list
is given. In Ireland, specific regulations on the health and safety at work of pregnant
workers appear to consider the list in Annex 1 as exhaustive, which is contrary to the
Directive. The Gibraltarian regulations do not appear to provide any obligation for the
employer to assess risks for pregnant or breastfeeding workers, a clear contravention
of Article 4. The Commission will be launching infringement proceedings against the
UK and Ireland for these breaches of Article 4.

Article 4(2) gives workers covered by the Directive the right to be informed of the
results of the assessment.

In Denmark and Portugal the results of the risk assessment must be given to the
employees in writing. France, Austria, Greece, Sweden, Denmark,
the UK and
Germany require employers to inform workers of the result of the risk assessment. In
Luxembourg the employer must provide a copy of the list of tasks to which pregnant
or breastfeeding women or those who have recently given birth may not be assigned.
In Spain the Labour and Social Security Inspectorate is responsible for ensuring that
workers and/or their representatives receive information on the risk assessment
carried out by the employer and in Finland occupational health experts must inform
the employer and employee of any risks discovered during their assessment. In
Ireland the employer and the National Authority for Occupational Safety and Health
are responsible for ensuring that employees covered by the Directive and/or their
representatives, are informed of the results of the risk assessment.

5.

ACTION FURTHER TO THE ASSESSMENT

Article 5 of the Directive requires the employer to adjust the working conditions or
working hours of the worker in order to avoid any identified risk. If this is not
possible, then she must be moved to another job and if that is not possible she must be
granted leave.

Most Member States follow Article 5 fairly closely, requiring the employer to take
reasonable steps to ensure the worker avoids any risk, by first adjusting working
conditions or working hours or shifts, with re-assignment or leave as final options.
Spanish legislation does not provide for a worker to be granted leave if that is the only
way for her to avoid risk to herself or the embryo. Similarly, French law does not
specifically provide for pregnant workers to take leave for health and safety reasons
This is incompatible with the Directive and infringement proceedings have been
launched against Spain and France.

8

Article 6 of the Directive refers to Annex II of the Directive which contains a non-
exhaustive list of agents and working conditions to which exposure by pregnant or
breastfeeding workers is prohibited, if the assessment carried out by the employer
reveals a risk of exposure to any of the listed agents or working conditions which
would jeopardise safety or health. Member States appear to have transposed the non-
exhaustive list of prohibited agents and working conditions by amending existing
requirements under national health and safety law to ensure the workers protected by
the Directive are not put at risk.

6.

NIGHTWORK

In 1991 the European Court of Justice ruled in the Stoeckel2 case that a provision
which banned women from performing nightwork, when no such ban existed for men,
was contrary to Article 5 of Directive 76/207/EEC. In 1994 the Commission initiated
infringement proceedings against Belgium, Greece, Italy, Portugal and France in
respect of bans on night work for women. These proceedings culminated in the
judgments of the Court of Justice in 1997 in Commission v French Republic3 and
Commission v Italy4.

Directive 92/85/EEC is careful not to depart from the fundamental principle of equal
treatment, which allows women to work on equal terms as men. However, pregnant
workers, those who have recently given birth or those who are breastfeeding are a
category of workers in need of special treatment, so Article 7 of the Directive
provides that if it is necessary in order to protect the health of the woman or the baby,
and the employer is entitled to demand a medical certificate to that effect, they cannot
be forced to work nights. If nightwork does pose a risk to health and safety, the
woman can be moved to daywork and where that is not possible or cannot be
reasonably required, the woman should be granted leave or an extension of maternity
leave. Moving a woman from night shifts could also be a necessary element
in
avoiding identified risks under Articles 5 and 6 of the Directive.

In Belgium women are not required to work nights for the 8 weeks before the date of
birth, nor for 4 weeks after the end of maternity leave, upon presentation of a medical
certificate. In Sweden a pregnant or breastfeeding worker must present a medical
certificate to her employer proving that working nights would be bad for her health.
Similarly, in Finland, Greece, Ireland, Portugal, Spain, the Netherlands, the UK and in
France the woman must produce a medical certificate. In Denmark and in Greece no
certificate is necessary, but the woman must not work nights if this causes any risk to
her or to the pregnancy.

Contrary to the wording of Article 7, some Member States go far further than required
under the Directive and ban pregnant women and women who have recently given
birth from working at night. The Commission considers this to be contrary to the
Directive and has commenced infringement proceedings on this point.

2 Case C-345/89, ECR 1-4047.
3 Case C-197/96.
4 Case C-207/96.

9

In Germany, the general rule is that pregnant or breastfeeding women may not work
at night. There are exceptions for women working in certain categories such as hotel
and restaurant workers, those in the entertainment business and dairy workers, who
may work during the first 4 months of pregnancy or while they are breastfeeding. The
Länder supervisory authority can authorise further exceptions. This system of a
general ban with exceptions related to certain occupations rather than the risk to the
woman's health and safety which might be posed by a particular job is not
in
accordance with Article 7 and the Commission is therefore considering commencing
infringement proceedings against Germany on this point.

In Austria, nightwork is banned for pregnant and breastfeeding women, although the
Labour Inspectorate can authorise individual exceptions up to 11pm. under certain
conditions. In Italy, in the manufacturing sector there is a general ban on pregnant
women working at night, but in other sectors the woman must produce a medical
certificate to show that she should not be forced to work nights. In Luxembourg there
is a complete prohibition on pregnant women working at night, as well as for women
who breastfeed for longer than 12 weeks. The complete ban on nightwork for
pregnant or breastfeeding women in these countries is considered to be contrary to the
general principle of equal treatment as expressed in Directive 76/207/EEC, is contrary
to the judgment of the European Court of Justice in case C-197/96 and also goes
much further than is required under Directive 92/85/EEC.

In Gibraltar the legislation is silent on the question of workers covered by the
Directive and nightwork. There appears to be no specific provision allowing a woman
not to work nights if it would create a risk to her health or that of the baby.
Infringement proceedings will be commenced against Austria, Italy, Luxembourg and
the UK for the reasons set out above.

7.

MATERNITY LEAVE

Article 8 of the Directive provides that the workers covered by it must be entitled to a
continuous period of at least 14 weeks maternity leave allocated before or after
confinement, in accordance with national practice. This period must include at least
two weeks of compulsory maternity leave allocated before or after confinement, in
accordance with national practice.

In Austria, there is an absolute ban on working for 8 weeks before the birth and
8 weeks afterwards. In Belgium, maternity leave lasts for a maximum of 15 weeks,
made up of a compulsory period consisting of one week before the birth and 8 weeks
afterwards. The remaining 6 weeks can be taken from the 49th day before the birth or
it can be taken after the 8 weeks after the birth, or it can be not taken at all (although a
woman cannot be forced to give it up). In Denmark, maternity leave lasts for
28 weeks, made up of four weeks before the birth, a compulsory two weeks after the
birth followed by a further 22 weeks. Finnish law lays down the period for which
maternity allowance is payable, rather than specifying the length of maternity leave.
Maternity allowance is payable from, at the latest, 30 days before the birth and
continues for 75 days afterwards. There is no compulsory maternity leave, although
for two weeks after the birth a woman can only do very light work, supported by a
medical certificate that the work is risk free. French maternity leave starts 6 weeks

10

before the birth and continues for 10 weeks after it. The woman is legally not able to
work for 8 weeks, of which at least 6 weeks must be after the birth.

In Germany work is prohibited for 6 weeks before the birth, although the woman can
request to work during that period. She may not work for 8 weeks after the birth.
Greek maternity leave is for 16 weeks, 8 weeks before the birth and 8 weeks
afterwards, all of which is compulsory. In Ireland, women can take up to 14 weeks'
maternity leave, of which 4 weeks are compulsory before the birth and 4 weeks are
compulsory after the birth. At the end of the 14 weeks, women have the right to take a
further 4 weeks immediately. Italy bans women from working in the two months
preceding the birth and in the three months following it. If the woman does heavy
work she may not work for three months before the birth. In Luxembourg a pregnant
woman must stop work 8 weeks before the birth and is not allowed to work in the
8 weeks that follow the birth. This compulsory post-natal period is extended to
12 weeks for women who are breastfeeding. The Netherlands grants women 16 weeks
maternity leave, of which 4 weeks before the birth and 8 weeks following the birth are
compulsory. Portugal provides for 98 days maternity leave, 14 days of which are
compulsory. 60 of the days must be taken after the birth, the remaining 30 can be
taken either before or after the birth.

Spanish law provides for 16 weeks of maternity leave, which can be taken before or
after the birth as the woman decides, but at least 6 weeks must be taken after the birth,
during which time the woman may not work. In Sweden women are entitled to
7 weeks off work before the birth and 7 weeks after the birth. They are also entitled to
leave if they are breastfeeding the baby. There is no period of compulsory maternity
leave. In the UK maternity leave is 14 weeks of which 2 weeks must be taken,
compulsorily, after the birth. Women working in factories must take 4 weeks after the
birth. Women who have worked for the same employer for two years are entitled,
after the 14 weeks maternity leave, to maternity absence up to the end of the 28th week
following the birth. In Gibraltar maternity leave is for 14 weeks, of which the 2 weeks
following the birth are compulsory.

Although the generous maternity allowances in Finland and Sweden mean that nearly
all women are on leave following the birth of a child, Directives must be implemented
by legislative measures rather than practice or administrative action5. Therefore the
lack of a compulsory period of at least two weeks maternity leave in Sweden and
Finland will be the subject of infringement proceedings.

5 Commission v Belgium [1980] ECR 1473.

11

(*) These periods can be taken before or after the compulsory maternity pay.
(1) This is the maximum period for which maternity allowance is payable, rather than statutory maternity leave.
(2) Portuguese law does not specify whether the compulsory 2 week period must be taken before or after the birth. Of the remaining maternity leave, 60 days must be taken after the birth and 30 days can be
taken before or after the birth.

MATERNITY LEAVE

s
k
e
e
W

30

25

20

15

10

5

0

-5

-10

Weeks (OPTIONAL) *

Weeks before/after birth (COMPULSORY)

Weeks (OPTIONAL)

A

B

DK

FIN (1)

F

D

EL

IRL

I

L

NL

P (2)

E

S

UK

Member States

12

8.

ANTE-NATAL EXAMINATIONS

Article 9 Directive 92/85/EEC gives pregnant workers the right to paid time off, in
accordance with national legislation and/or practice for ante-natal examinations, if
such examinations cannot take place outside of working hours.

This obligation has been correctly transposed by the Member States. A number of
Member States require the woman to produce a certificate to show that she cannot
attend for examinations other than during working hours, but this is compatible with
Article 9. In Sweden the right to paid time off for ante-natal examinations appears to
be contained in collective agreements rather than in legislation.

9.

PROHIBITION OF DISMISSAL

Article 10 of the Directive provides that women who come within its provisions must
be protected from dismissal from the beginning of their pregnancy to the end of their
maternity leave. The only exception to this provision is if the dismissal is for reasons
unconnected to the pregnancy, which are permitted under national law and where the
appropriate authority has given its consent. If a worker protected by the Directive is
dismissed during period, she has the right to be given the reason in writing.

The judgments of the European Court of Justice in cases concerning refusal to appoint
pregnant women and their dismissal are reflected in the Directive and should be
briefly mentioned. As long ago as 1990 the Court held that to refuse to appoint a
woman because she was pregnant was direct discrimination on grounds of sex,
contrary to Directive 76/207/EEC6. In its judgment in Webb v EMO Air Cargo (UK)
Ltd7 the Court held that
it was contrary to Directive 76/207/EEC to dismiss
Mrs Webb, hired to replace a woman away from work on maternity leave, when she
discovered that she too was pregnant. In the Larsson case8 the Court was faced with
the dismissal of a woman who was dismissed after a lengthy period of sick leave due
to a pregnancy related condition. The Court held that as the dismissal took place after
the end of the woman's period of maternity leave, Directive 76/207/EEC did not
apply. In 1998 the UK's House of Lords referred to the Court, under Article 177 EEC,
a very similar case; Brown v Rentokil Ltd9. Mrs Brown was absent from work for
over 6 months during pregnancy due to a pregnancy related illness. The contracts of
employment of all Rentokil employees, men and women, contained a clause that
sickness absence of 6 months justified dismissal. Accordingly, Mrs Brown was
dismissed. The Court held, in an explicit reversal of the Larsson judgment, that it was
contrary to Directive 76/207/EEC to dismiss a woman for pregnancy-related illness
during her pregnancy. The facts of both the Larsson and Brown cases arose before
Directive 92/85/EEC came into force.

In Austria and in Germany, the worker is protected against dismissal from the time
she informs her employer of her pregnancy until 4 months after the birth. In Belgium
protection also runs from the time the employer knows of the pregnancy and

6 Dekker v Stichting Vormingscentrum voor Jong Volwassenen [1990] ECR I-3941.
7 Case C-32/93 [1994] ECR I-3567.
8 Larsson v Fotex Supermarked [1997] ECR 1-2757.
9 Case C-394/96, judgment 30 June 1998, [1998] ECR I-4185.

13

continues until one month after the end of maternity leave. Protection from dismissal
in France runs from the beginning of the pregnancy to one month after the end of
maternity leave, but is dependant upon the employer having been informed of the
pregnancy. Denmark and Sweden prohibit dismissal
reasons connected to
pregnancy, childbirth, adoption or the requesting of maternity leave.

for

Similarly, in Finland dismissals for pregnancy or during maternity or parental leave
are null and void. In Greece and in Italy, dismissal is illegal during pregnancy and for
one year afterwards. Irish law provides that any dismissal during pregnancy, health
and safety leave, maternity leave or leave for ante-natal examinations shall be void. In
Luxembourg it is prohibited to dismiss a woman while she is pregnant or during the
12 weeks that follow the birth. In the Netherlands, women are protected from
dismissal during pregnancy and until 6 weeks after the end of the maternity period. In
Portugal protection from dismissal subsists throughout pregnancy, maternity leave
and any period the woman is breastfeeding. In Spain, dismissal for pregnancy-related
reasons would be considered discriminatory under the Constitution and would thus be
null and void. Whilst it is possible that existing national law can be considered to
correctly implement the provisions of a later Directive, there must be some doubt in
this case whether the general protection afforded by the Constitution is as effective as
a specific provision on dismissal during pregnancy and maternity leave would be.

If a woman is dismissed during pregnancy or maternity leave, most of the Member
States require the employer to prove that the dismissal was for an objective reason
unconnected to pregnancy. In Germany the Länder supervisory authority must declare
the dismissal lawful, as must the Equal Employment Commission in Portugal. In
Greece the Labour Inspectorate of the Prefecture must be informed of any dismissal
during pregnancy or the year that follows. In Luxembourg the employer does not
appear to be under a specific duty to prove that the dismissal was for reasons
unconnected with the pregnancy, although there is a special procedure which allows
the dismissed woman to request the President of the Labour Court to look at her case
urgently. In the other Member States there is no official authority which must
authorise dismissals in these circumstances; if the woman considers that she has been
unfairly dismissed she must take her case to the Labour Courts. It should be noted that
Directive 97/80/EC on the burden of proof in cases of discrimination based on sex
will apply to those provisions of Directive 92/85/EEC where the principle non-
discrimination between women and men is to be applied, once it enters into force
(1.1.2001 for the 14 Member States, 22.7.2001 for the UK).

14

10.

EMPLOYMENT RIGHTS

10.1.

A. During leave on health and safety grounds

Article 11(1) of the Directive provides for rights under the employment contract
including the maintenance of a payment whilst a woman is granted leave from work
because of risks to her health or that of the baby, or when she is granted leave from
night work. In these cases, employment rights must be maintained according to
national legislation and/or practice, and the worker has the right to the maintenance of
a payment or to be paid an adequate allowance. The preamble to the Directive and the
minutes statement of the Commission and Council make it clear that the reference to
sick pay should in no way be interpreted as suggesting an analogy between pregnancy
and illness. Article 11(4) of the Directive provides that Member States may make
entitlement to pay or an adequate allowance conditional upon the worker fulfilling the
conditions of eligibility for such benefits laid down by national law. The maximum
length of previous employment that can be required is 12 months before the presumed
date of birth.

In Austria a worker on such leave is entitled to be paid an average of her remuneration
over the previous 13 weeks. Her rights under her employment contract are maintained
and she is entitled to any special payments such as bonuses. However, if the reason
the woman is granted leave from work is because the Labour Inspectorate doctor
issued a certificate stating that it was necessary for her health, then the woman is
entitled to a social insurance benefit, maternity allowance. This allowance is not
payable to those whose previous earnings were low; in respect of those women the
employer must
continue to pay remuneration. The Austrian Trade Union
Confederation says that this leads to employers pressurising women to apply for a
medical certificate.

In Belgium, a woman granted leave from work for health and safety reasons is entitled
to 60% of her pay, up to a maximum as long as she has worked for 120 days in the
6 months preceding the granting of the payment. In Denmark when a woman is
granted leave from work her employment contract is maintained, and she is entitled to
a "daily cash benefit" or half pay, which ever is greater. Entitlement to daily cash
benefit is dependent upon her having worked for the previous 13 weeks, or being
entitled to unemployment benefit. In Finland, periods of leave from work for health
risk reasons count for annual leave purposes, but the woman is not entitled to her pay.
Instead she is entitled to a special maternity allowance which is the same amount as
incapacity benefit, and amounts to about 60% of pay. The woman must be insured to
be eligible for benefit. In France, a worker granted leave from her normal work is
entitled to 90% of her pay for the first 30 days and two thirds of her pay for the next
30 days.

In Germany, a woman's employment contract continues throughout leave from work
for health reasons and throughout maternity leave. During leave from work the
woman is entitled to be paid the average of her salary during the last 13 weeks. In
Greece, a woman granted leave from work because of health and safety concerns has
the rights to half pay from her employer for the first 25 days of absence and thereafter
she has the same rights to pay as she has during maternity leave. Under the Irish

15

system, whilst she is on "health and safety" leave a woman's rights under her
employment contract subsist and she must be paid in full by the employer for the first
21 days. After that, she may be entitled to the standard rate of Health and Safety
benefit if she has paid social insurance contributions in at least 39 weeks in the
12 months before the date the baby is due and her average weekly earnings for the
previous tax year were over £IR70. If a woman's earnings were under that amount she
is entitled to a lower rate of benefit.

A woman in Italy granted leave from work for health and safety reasons is entitled to
an allowance equivalent to 80% of her pay, 100% if she works in the public sector. In
Luxembourg a woman granted leave from work is entitled to maternity allowance at
the same level as sickness benefit as long as she is insured. The Netherlands provide
that an insured woman granted leave from work is entitled to an allowance equivalent
to 100% of her pay, which is higher than she would receive if she was sick (only 70%
of pay) . In Portugal maternity benefit equivalent to 65% of the person's reference
wage (determined by the formula R/180, where R is the woman's total gross pay over
the previous 6 months) is payable to workers granted leave from work. Public sector
employees are entitled to full pay for any period of leave.

As mentioned above (page 5), Spain does not provide the possibility for a woman to
be granted leave from work due to health and safety reasons. It follows that there are
no provisions in Spanish law on payment during such absences from work. In
Sweden, an insured woman (basically resident in Sweden) granted leave from work
for health and safety reasons is entitled to a pregnancy cash benefit which is paid at
75% of the woman's wage. In the UK a woman granted leave from work for health
and safety reasons is entitled to continue to receive her full pay, as long as she has not
unreasonably refused alternative employment. The position is the same in Gibraltar.

10.2.

B. During maternity leave

Article 11(2) of the Directive makes similar provision for employment rights during
maternity leave as exist during leave for health and safety reasons, including the
possibility of imposing qualifying conditions to entitlement
to pay or adequate
allowance. An adequate allowance is defined as being at least the amount the worker
would be entitled to if she was away from work on sick leave.

In Austria during maternity leave insured workers are entitled to maternity allowance
paid at the rate of 100% of the average net remuneration over the previous 3 months.
This is higher than the allowance paid for sick pay. Periods in receipt of maternity
allowance count for pension and insurance purposes. Those who earn below the
threshold for paying insurance are not entitled to maternity allowance and their
employer must continue to pay during the 16 weeks maternity leave. Civil servants
are entitled to full pay during maternity leave.

In Belgium a woman on maternity leave is entitled to an allowance equivalent to 82%
of her net salary for the first 30 days, followed by 75% of her salary for the remainder
of the 15 weeks maternity leave. This is higher, for the first 30 days, than the level of
sick pay, but thereafter the rates are the same. The conditions of entitlement are the
same as those for payment of benefit during leave for health and safety reasons.
Whilst she is on maternity pay her contract of employment is suspended and any

16

period during which she is entitled to maternity allowance counts for pension
purposes.

In Denmark the daily cash benefit paid during leave from work on health and safety
grounds is also paid during maternity leave, as long as the woman has worked for the
previous 13 weeks. The amount varies depending on the hourly income the woman
would have been entitled to on sick leave, up to a maximum of DK 70 per hour. The
Salaried Employees Act covers non-manual workers who work at least 15 hours a
week in specific fields such as the provision of technical assistance, shop assistants or
supervisors. Women coming within the scope of the Act can choose to receive half
pay or benefit, whichever is higher.

In Finland women on maternity leave are entitled to maternity allowance, which is
paid at the same rate as the allowance for incapacity for work. Entitlement
to
maternity allowance is subject to the woman having resided in Finland for at least
180 days before the birth. The employment contract continues and pension rights
accrue, during maternity and parental leave. Civil servants are paid during maternity
leave.

In France maternity leave counts for seniority and pension purposes. During maternity
leave a woman is entitled to 84% of her salary up to a prescribed maximum. In order
to qualify the woman must have worked for at least 200 hours in the three months
preceding the birth and must have been registered for social security purposes at least
10 months before the birth. Civil servants continue to be paid in full during maternity
leave.

In Germany if a woman has been a member of the statutory health insurance scheme
when her maternity leave starts and was a member for at least 12 weeks in the period
running from the beginning of the 10th month before the date of birth to the end of the
4th month before the birth, she is entitled to maternity allowance paid by the health
insurance scheme up to a maximum of 25DM per day, plus the difference between the
maternity allowance and her net pay. If she has been in paid employment during the
same period she is entitled to the same benefit. For women who are not members of
the statutory health insurance scheme, if they have been in paid employment from at
least the beginning of the 10th month before the birth to the end of the 4th month
before the birth they are entitled to maternity allowance paid by the Federal State
limited to a maximum total of DM400 during the maternity leave, plus the difference
between maternity allowance and the average daily net salary. The employment
contract continues during maternity leave.

Greek law gives women the right to half pay for the first 25 days of maternity leave.
After that period, women in the public sector are entitled to 100% pay from their
employer and women in the private sector are entitled to the same amount, partly from
their employers and partly from social security schemes. The Greek legislation
provides that the specific arrangements for implementing Article 11(2)(b) and (3) of
the Directive are left to the relevant insurance bodies and no information on these
specific arrangements has been provided. A Member State must
its
obligations under the Directive by legal means rather than by administrative measures
the Commission has decided to launch
which can be changed. As a result
infringement proceedings against Greece on this point.

implement

17

In Ireland, entitlement to maternity benefit of up to 70% of gross pay, with a
minimum payment of £IR 83.70 and a maximum of £IR162.80, is dependent upon the
woman satisfying the same conditions as for health and safety benefit set out above.
This is higher than benefit for sickness. All employment rights except remuneration
continue during maternity leave.

In Italy payment during maternity leave is the same as that during leave from work for
health and safety reasons, set out above. Time on maternity leave counts for seniority
purposes and towards holidays and pensions.

In the Netherlands, insured women are entitled to payment equivalent to 100% of
their wages, which is more than the 70% of wages for sick leave. There is no
qualifying period – women are insured from the first day of work. In Luxembourg
insured women are entitled to maternity allowance at the rate of sickness benefit
during maternity leave.

In Portugal a woman on maternity leave is considered to be in work. She receives
65% of her reference wage (see above) provided she has worked for at least 6 months.
As for the maintenance of rights under the employment contract, apart from the fact
that is unpaid, periods of maternity leave count as actual performance of service. In
Spain pay during maternity leave is at the same rate as temporary disability benefit.
The woman must have worked and paid national insurance for at least 6 months in the
5 years preceding the birth. The employment contract is suspended during maternity
leave.

Sweden provides an allowance during maternity leave which is at the same rate as
sickness benefit, 60skr a day. The woman must have been registered with the social
security office for 180 days before the day on which the payment begins. A higher
rate is payable to women who have been registered for 240 days. Periods spent caring
for a child under the age of three are recognised for the purposes of the parent's
entitlement to supplementary pension.

In the UK a woman is entitled to statutory maternity pay (SMP) provided that she has
worked for her employer for at least 6 months before 15th week before the birth and
earned enough on average during the 8 weeks preceding the 15th week before the birth
to have to pay national insurance contributions. During the first 6 weeks SMP is paid
at the rate of 90% of salary, thereafter at £54.44 pounds a week. Women not entitled
to SMP may be entitled to maternity allowance if they have worked and paid national
insurance contributions in at least the 26 weeks out of the 66 weeks ending with the
week before the expected date of birth. After the first 6 weeks SMP is paid at the
the
same rate as statutory sick pay, as is maternity allowance. Rights under
employment contract continue for the 14 weeks maternity pay, and the employer must
continue to pay occupational pension contributions based on the woman's normal
remuneration. The woman is only required to make contributions on the basis of pay
actually received during maternity leave. In Gibraltar women on maternity leave are
entitled to remuneration at the weekly rate of injury benefit to which she would have
been entitled had she been a beneficiary of injury benefit. This implies that
entitlement to an allowance during maternity leave is dependent upon the woman
satisfying the conditions of entitlement for injury benefit. However, as the Member
States are permitted by the Directive to make entitlement to an adequate allowance

18

subject to the conditions of eligibility of benefits (Article 11(4)), such a restriction is
permissible.

As mentioned in the introduction, the European Court of Justice gave its first ruling
on Directive 92/85/EEC on 27th October 1998. The Boyle case concerned the rights of
women under their contract of employment (rather than under statute) during
pregnancy and maternity leave. The Court held that the Member States are free to
determine when maternity leave begins, but that a contractual clause which prohibited
a woman from taking sick leave during the minimum 14 weeks maternity leave,
unless she returned to work and terminated her maternity leave, was contrary to the
Directive. The Court ruled that as long as the minimum provisions of the Directive
were respected, it was lawful for contractual provisions to go no further, and indeed
extra entitlements due under contract could be subject to additional conditions. The
Court therefore held that it was permissible to limit the accrual of annual leave to the
14 weeks statutory maternity leave. However,
the Court held that occupational
pension rights must continue to accrue during any period of the 14 weeks minimum
maternity leave that was unpaid by either the state or the employer.

On the 19th November the Court of Justice gave its second judgment on the Directive
in the Pedersen case,10 concerning Danish legislation on pay during incapacity for
work due to pregnancy. The fact
that women absent from work for incapacity
connected to pregnancy were paid less than workers absent for other forms of
incapacity was discriminatory. The Court also ruled that it was contrary to Articles 4
and 5 of Directive 92/85/EEC for an employer to be able to send a pregnant woman
home who is not unfit for work, without paying her salary, because he considers he
cannot provide work for her. The Court emphasised that such a system was aimed not
at protecting the pregnant woman's biological condition but at preserving the
employer's interests.

11.

CONCLUSION

Before Directive 92/85/EEC was adopted, all the Member States had some form of
protection for pregnant workers, although it varied considerably. In some Member
States, such as Italy, the Netherlands and France, the protection provided was higher
than that required by the Directive, whereas in others it had the effect of increasing
the health and safety protection and the employment rights of pregnant workers. For
example, in Sweden and in Portugal, maternity leave was increased as a result of the
Directive, and in the UK qualifying periods for maternity leave were reduced. In
Ireland implementation of the Directive lead to a number of improvements,
in
particular the possibility of "health and safety" leave if it is not possible for the
woman's work to be altered so as to avoid an identified risk to the pregnancy or the
baby. Paid time off for ante-natal examinations was introduced in Belgium, Austria,
Denmark, Ireland and Finland.

Under Article 14(6) of the Directive the Council has a duty to re-examine the
Directive. From the information the Commission has received on the implementation
of the Directive in the Member States, a number of potential problems are evident.

10 Case C-66/96.

19

11.1.

Personal Scope

The first concerns the personal scope of the Directive. Article 2 provides that in order
inform her
to come within the definition of "pregnant worker" the worker must
employer in accordance with national legislation and/or practice. The definition of
"worker who has recently given birth" is left to national law and/or practice, as is the
obligation to inform the employer. Similarly,
the definition of "worker who is
breastfeeding" and the obligation to inform the employer are left to national law
and/or practice. The definition of worker who has recently given birth ranges widely
between the Member States, from 2 months after the birth in Greece to 6 months after
the birth in the UK, as does the definition of breastfeeding worker, from 6 months
after the birth in Ireland to one year old in Greece. The requirement to inform the
employer also varies widely between the Member States.

The differences in the national definitions of breastfeeding workers and workers who
have recently given birth means that the personal scope of the Directive differs
substantially depending upon the Member State. The requirement
to inform the
employer also raises a more general question. If a woman is obviously pregnant but
has not formally informed her employer, she falls outside the personal scope of the
Directive, even though in practice the employer is aware of the pregnancy. The
Commission will reflect further on how to resolve this problem.

The definition of "worker" in the Directive has a Community meaning, which cannot
be overridden by national law definitions. However the meaning of "worker who has
recently given birth" and "worker who is breastfeeding" is then qualified by national
treatment across the Member States.
law definitions,
Differences in national law in the definition of breastfeeding workers and workers
who have recently given birth mean that the protection offered to women varies
considerably Furthermore, to require the pregnant woman to inform her employer in
accordance with national procedure not only leads to differences in treatment but
could substantially limit the protection offered by the Directive.

leading to disparity of

11.2.

Employment Rights

Given that most Member States provide for longer maternity leave than is required
under the Directive, it is not necessary to alter the provision on the length of maternity
leave. Although the Directive provides for 14 weeks maternity leave, only 2 weeks of
it are compulsory. However, the majority of Member States have much longer periods
of compulsory maternity leave, prohibiting work both before and after the birth.
During this period the woman is usually only paid a percentage of her normal pay, or
is entitled to social security benefits.

There is an inherent tension in ensuring that pregnancy is not used as an excuse to
discriminate against women and the need for protective measures for pregnant
women. An example of this is night work. The Directive provides that a women may
not be obliged to work nights during pregnancy or for a period following childbirth,
subject to the submission of a medical certificate stating that this is necessary for
health and safety reasons. The principle of equal treatment means that women have
the same access to night work as men, but that a limited exception for health and
safety reasons is made for pregnant women and women who have recently given

20

birth. The wording of Article 7 of the Directive reflects the need to provide specific
health and safety protection for pregnant women whilst respecting their general right
of non-discrimination which allows them to work nights.

However, from the information gathered for this Report, it is clear that in some
Member States the right of women to non-discrimination has been disregarded by the
imposition of bans on night work. Banning pregnant women from night work without
undertaking an assessment of risk of the particular job leads to women being granted
leave from work, with the loss of salary this entails in nearly all the Member States.

Article 1(3) of the Directive prohibits the Member States from using the Directive as
an excuse to reduce the level of protection for pregnant or breastfeeding women or
those who have recently given birth that existed before the adoption of the Directive.
Paragraph 3 of Article 118a of the Treaty is also relevant in the context of national
measures which may go beyond the provisions of the Directive:

"The provisions adopted pursuant to this Article shall not prevent any Member
State from maintaining or
the
protection of working conditions compatible with this Treaty."

introducing more stringent measures for

The Court of Justice confirmed on 17th December 1998 in Case C-2/97 Societa
Italiana Petroli SpA v Borsana SrL that where a Directive laying down minimum
requirements is adopted under Article 118a the Member States are still free to
introduce more stringent measures for the protection of working conditions. However,
the Court appeared to imply that such measures must respect the coherence of
Community action in the area of workers' health and safety, and must apply in a non-
discriminatory way so that the exercise of the fundamental freedoms guaranteed by
the Treaty are not hindered.

Although the Directive prohibits dismissal during pregnancy or maternity leave, it is
silent on the question of the woman's right to return to her job or an equivalent one at
the end of her period of maternity leave. Such a right to return is provided for in the
national legislation of a number of Member States (Ireland, Luxembourg, Finland and
the UK) and is the natural corollary of the prohibition on dismissal. The Commission
will consider how to deal with this problem.

The question of payment during health and safety leave and maternity leave is crucial
to the ability of women to take advantage of their right to take leave. Payment during
leave from work for health and safety grounds under Articles 5, 6 and 7 appears to be
reasonably well provided for by the Member States in their implementing measures.
Pay during this period is a mixture of payment from the employer and state benefits.
Although some Member States impose conditions of entitlement these do not appear
to be too onerous.

The situation is more difficult concerning payment during maternity leave. Whilst
more generous arrangements may apply to civil servants or as a result of certain
collective agreements, during maternity leave nearly all women are paid social
security benefits. Even though the level of these benefits may be linked to the
woman's previous wages they are usually considerably lower than her pervious pay. It
is interesting that the burden of pay during maternity leave is put squarely on the state
rather than on the employer. The Directive allows conditions of entitlement to be

21

imposed, and all
the Member States have taken advantage of this provision.
Conditions range from minimum periods of residence, insurance or payment of social
security contributions, employment or level of previous earnings.

Reliable information on the practical effect of the conditions women must satisfy in
order to receive payment during maternity leave is not available, and it is therefore
impossible to know what percentage of women on maternity leave are not entitled to
any payment at all. The lack of any payment during maternity leave will make it very
difficult for some women to take maternity leave, thus reducing considerably the
protection afforded by the Directive. To enable a proper assessment of this aspect of
the implementation of the Directive, the Commission will request further information
on the conditions of entitlement to payment during maternity leave imposed by the
Member States.

The judgment of the Court of Justice in Commission v Luxembourg 11should be noted
the childbirth allowance and the maternity
in this context. The Court held that
allowance were a "social advantage" under Article 7(2) of Regulation 1612/68 and
that a residence requirement discriminated indirectly against migrant workers who
were less likely to satisfy the residence requirement
that national workers.
Furthermore, the maternity allowance was held to be a social security benefit within
the scope of Regulation 1408/71, Article 18 of which provides that where entitlement
to a benefit is dependent upon the completion of periods of insurance, employment or
residence, Member States must take into account periods of insurance, employment or
residence completed in another Member State. It is not clear from the information
provided by the Member States whether the grant of maternity allowance complies
fully with the principles of Regulation 1612/68 and Regulation 1408/71 as regards
migrant workers who are pregnant or have recently given birth. Further information
from the Member States will be sought on this point.

In general terms, Directive 92/85/EEC has been well implemented by the Member
States. It has ensured that pregnant women, women who have recently given birth or
are breastfeeding are entitled to the same health and safety standard at work across the
European Union. They are also entitled to the same employment rights, an essential
element for working women who have children. The rights set out in the Directive
represent a good framework for the dual role of women as workers and as mothers,
roles which require both special protection and non-discrimination. Although a
number of infringement proceedings have been launched for failure to properly
implement particular provisions of the Directive, now that new legislation has entered
into force in Luxembourg no Member States is being pursued for total non-
implementation of the Directive. The fact that the Directive has been reasonably well
implemented in the Member States is reflected in the low level of complaints about
the rights of pregnant workers received by the Commission.

11 Case C-111/91, ECR I 817.

22

ANNEX 1

COUNCIL DIRECTIVE 92 / 85 / EEC

of 19 October 1992

on the introduction of measures to encourage improvements in the safety and
health at work of pregnant workers and workers who have recently given birth
or are breastfeeding (tenth individual Directive within the meaning of Article 16
(1) of Directive 89/391/EEC)

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community, and in
particular Article 118a thereof,

Having regard to the proposal from the Commission, drawn up after consultation with
the Advisory Committee on Safety, Hygiene and Health Protection at work1,

In co-operation with the European Parliament2,

Having regard to the opinion of the Economic and Social Committee3,

Whereas Article 118a of the Treaty provides that the Council shall adopt, by means of
directives, minimum requirements for encouraging improvements, especially in the
working environment, to protect the safety and health of workers;

Whereas this Directive does not justify any reduction in levels of protection already
achieved in individual Member States, the Member States being committed, under the
Treaty, to encouraging improvements in conditions in this area and to harmonizing
conditions while maintaining the improvements made;

Whereas, under the terms of Article 118a of the Treaty, the said directives are to avoid
imposing administrative, financial and legal constraints in a way which would hold
back the creation and development of small and medium-sized undertakings;

Whereas, pursuant to Decision 74/325/EEC4, as last amended by the 1985 Act of
Accession, the Advisory Committee on Safety, Hygiene and Health protection at
Work is consulted by the Commission on the drafting of proposals in this field;

Whereas the Community Charter of the fundamental social rights of workers, adopted
at the Strasbourg European Council on 9 December 1989 by the Heads of State or
Government of 11 Member States, lays down, in paragraph 19 in particular, that:

1 OJ C 281, 9. 11. 1990, p. 3; and OJ C 25, 1. 2. 1991, p. 9.
2 OJ C 19, 28. 1. 1991, p. 177; and OJ C 150, 15. 6. 1992, p. 99.
3 OJ C 41, 18. 2. 1991, p. 29.
4 OJ L 185, 9. 7 .1974, p. 15.

23

'Every worker must enjoy satisfactory health and safety conditions in his working
environment. Appropriate measures must be taken in order to achieve further
harmonisation of conditions in this area while maintaining the improvements made`;

Whereas the Commission, in its action programme for the implementation of the
Community Charter of the fundamental social rights of workers, has included among
its aims the adoption by the Council of a Directive on the protection of pregnant
women at work;

Whereas Article 15 of Council Directive 89/391/EEC of 12 June 1989 on the
introduction of measures to encourage improvements in the safety and health of
workers at work5 provides that particularly sensitive risk groups must be protected
against the dangers which specifically affect them;

Whereas pregnant workers, workers who have recently given birth or who are
breastfeeding must be considered a specific risk group in many respects, and measures
must be taken with regard to their safety and health;

Whereas the protection of the safety and health of pregnant workers, workers who
have recently given birth or workers who are breastfeeding should not treat women on
the labour market unfavourably nor work to the detriment of directives concerning
equal treatment for men and women;

Whereas some types of activities may pose a specific risk, for pregnant workers,
workers who have recently given birth or workers who are breastfeeding, of exposure
to dangerous agents, processes or working conditions; whereas such risks must
therefore be assessed and the result of such assessment communicated to female
workers and/or their representatives;

Whereas, further, should the result of this assessment reveal the existence of a risk to
the safety or health of the female worker, provision must be made for such worker to
be protected;

Whereas pregnant workers and workers who are breastfeeding must not engage in
activities which have been assessed as revealing a risk of exposure, jeopardising
safety and health, to certain particularly dangerous agents or working conditions;

Whereas provision should be made for pregnant workers, workers who have recently
given birth or workers who are breastfeeding not to be required to work at night where
such provision is necessary from the point of view of their safety and health;

Whereas the vulnerability of pregnant workers, workers who have recently given birth
or who are breastfeeding makes it necessary for them to be granted the right to
maternity leave of at
least 14 continuous weeks, allocated before and/or after
confinement, and renders necessary the compulsory nature of maternity leave of at
least two weeks, allocated before and/or after confinement;

Whereas the risk of dismissal for reasons associated with their condition may have
harmful effects on the physical and mental state of pregnant workers, workers who

5 OJ L 183, 29. 6. 1989, p. 1.

24

have recently given birth or who are breastfeeding; whereas provision should be made
for such dismissal to be prohibited;

Whereas measures for the organisation of work concerning the protection of the
health of pregnant workers, workers who have recently given birth or workers who
are breastfeeding would serve no purpose unless accompanied by the maintenance of
rights linked to the employment contract, including maintenance of payment and/or
entitlement to an adequate allowance;

Whereas, moreover, provision concerning maternity leave would also serve no
purpose unless accompanied by the maintenance of rights linked to the employment
contract and or entitlement to an adequate allowance;

Whereas the concept of an adequate allowance in the case of maternity leave must be
regarded as a technical point of reference with a view to fixing the minimum level of
protection and should in no circumstances be interpreted as suggesting an analogy
between pregnancy and illness,

HAS ADOPTED THIS DIRECTIVE -

SECTION I

PURPOSE AND DEFINITIONS

Article 1

Purpose

1. The purpose of this Directive, which is the tenth individual Directive within the
meaning of Article 16 (1) of Directive 89/391/EEC, is to implement measures to
encourage improvements in the safety and health at work of pregnant workers and
workers who have recently given birth or who are breastfeeding.

2. The provisions of Directive 89/391/EEC, except for Article 2 (2) thereof, shall
apply in full to the whole area covered by paragraph 1, without prejudice to any more
stringent and/or specific provisions contained in this Directive.

3. This Directive may not have the effect of reducing the level of protection afforded
to pregnant workers, workers who have recently given birth or who are breastfeeding
as compared with the situation which exists in each Member State on the date on
which this Directive is adopted.

25

Article 2

Definitions

For the purposes of this Directive:

(a) pregnant worker shall mean a pregnant worker who informs her employer of her

condition, in accordance with national legislation and/or national practice;

(b) worker who has recently given birth shall mean a worker who has recently given
birth within the meaning of national legislation and/or national practice and who
informs her employer of her condition, in accordance with that legislation and/or
practice;

(c) worker who is breastfeeding shall mean a worker who is breastfeeding within the
meaning of national legislation and/or national practice and who informs her
employer of her condition, in accordance with that legislation and/or practice.

SECTION II

GENERAL PROVISIONS

Article 3

Guidelines

1. In consultation with the Member States and assisted by the Advisory Committee on
Safety, Hygiene and Health Protection at Work, the Commission shall draw up
guidelines on the assessment of the chemical, physical and biological agents and
industrial processes considered hazardous for the safety or health of workers within
the meaning of Article 2.

The guidelines referred to in the first subparagraph shall also cover movements and
postures, mental and physical fatigue and other types of physical and mental stress
connected with the work done by workers within the meaning of Article 2.

2. The purpose of the guidelines referred to in paragraph 1 is to serve as a basis for the
assessment referred to in Article 4 (1).

To this end, Member States shall bring these guidelines to the attention of all
employers and all female workers and/or their representatives in the respective
Member State.

26

Article 4

Assessment and information

1. For all activities liable to involve a specific risk of exposure to the agents, processes
or working conditions of which a non-exhaustive list
is given in Annex I, the
employer shall assess the nature, degree and duration of exposure, in the undertaking
and/or establishment concerned, of workers within the meaning of Article 2, either
directly or by way of the protective and preventive services referred to in Article 7 of
Directive 89/391/EEC, in order to:

– assess any risks to the safety or health and any possible effect on the pregnancys or

breastfeeding of workers within the meaning of Article 2,

– decide what measures should be taken.

2. Without prejudice to Article 10 of Directive 89/391/EEC, workers within the
meaning of Article 2 and workers likely to be in one of the situations referred to in
Article 2 in the undertaking and/or
their
representatives shall be informed of the results of the assessment referred to in
paragraph 1 and of all measures to be taken concerning health and safety at work.

concerned and/or

establishment

Article 5

Action further to the results of the assessment

1. Without prejudice to Article 6 of Directive 89/391/EEC, if the results of the
assessment referred to in Article 4 (1) reveal a risk to the safety or health or an effect
on the pregnancy or breastfeeding of a worker within the meaning of Article 2, the
employer shall take the necessary measures to ensure that, by temporarily adjusting
the working conditions and/or the working hours of the worker concerned,
the
exposure of that worker to such risks is avoided.

2. If the adjustment of her working conditions and/or working hours is not technically
and/or objectively feasible, or cannot reasonably be required on duly substantiated
take the necessary measures to move the worker
grounds,
concerned to another job.

the employer shall

3. If moving her to another job is not technically and/or objectively feasible or cannot
reasonably be required on duly substantiated grounds, the worker concerned shall be
granted leave in accordance with national legislation and/or national practice for the
whole of the period necessary to protect her safety or health.

4. The provisions of this Article shall apply mutatis mutandis to the case where a
worker pursuing an activity which is forbidden pursuant
to Article 6 becomes
pregnant or starts breastfeeding and informs her employer thereof

27

Article 6

Cases in which exposure is prohibited

In addition to the general provisions concerning the protection of workers,
particular those relating to the limit values for occupational exposure:

in

1.

pregnant workers within the meaning of Article 2 (a) may under no circumstances
be obliged to perform duties for which the assessment has revealed a risk of
exposure, which would jeopardise safety or health, to the agents and working
conditions listed in Annex II, Section A;

2. workers who are breastfeeding, within the meaning of Article 2 (c), may under no
circumstances be obliged to perform duties for which the assessment has revealed
a risk of exposure, which would jeopardise safety or health, to the agents and
working conditions listed in Annex II, Section B.

Article 7

Night work

1. Member States shall take the necessary measures to ensure that workers referred to
in Article 2 are not obliged to perform night work during their pregnancy and for a
period following childbirth which shall be determined by the national authority
competent for safety and health, subject
in accordance with the
procedures laid down by the Member States, of a medical certificate stating that this is
necessary for the safety or health of the worker concerned.

to submission,

2. The measures referred to in paragraph 1 must entail the possibility, in accordance
with national legislation and/or national practice, of:

(a)

transfer to daytime work; or

(b) leave from work or extension of maternity leave where such a transfer is not
technically and/or objectively feasible or cannot reasonably by required on duly
substantiated grounds.

Article 8

Maternity leave

1. Member States shall take the necessary measures to ensure that workers within the
meaning of Article 2 are entitled to a continuous period of maternity leave of a least
in accordance with national
14 weeks allocated before and/or after confinement
legislation and/or practice

2. The maternity leave stipulated in paragraph 1 must include compulsory maternity
leave of at least two weeks allocated before and/or after confinement in accordance
with national legislation and/or practice.

28

Article 9

Time off for ante-natal examinations

Member States shall take the necessary measures to ensure that pregnant workers
within the meaning of Article 2 (a) are entitled to, in accordance with national
legislation and/or practice, time off, without loss of pay, in order to attend ante-natal
examinations, if such examinations have to take place during working hours.

Article 10

Prohibition of dismissal

In order to guarantee workers, within the meaning of Article 2, the exercise of their
it shall be
health and safety protection rights as recognised under this Article,
provided that:

1.

2.

3.

Member States shall take the necessary measures to prohibit the dismissal of
workers, within the meaning of Article 2, during the period from the beginning
of their pregnancy to the end of the maternity leave referred to in Article 8 (1),
save in exceptional cases not connected with their condition which are
permitted under national legislation and/or practice and, where applicable,
provided that the competent authority has given its consent;

if a worker, within the meaning of Article 2, is dismissed during the period
referred to in point 1, the employer must cite duly substantiated grounds for
her dismissal in writing;

Member States shall take the necessary measures to protect workers, within
the meaning of Article 2, from consequences of dismissal which is unlawful
by virtue of point 1.

Article 11

Employment rights

In order to guarantee workers within the meaning of Article 2 the exercise of their
health and safety protection rights as recognised in this Article, it shall be provided
that:

1.

in the cases referred to in Articles 5, 6 and 7, the employment rights relating to
the employment contract, including the maintenance of a payment to, and/or
entitlement to an adequate allowance for, workers within the meaning of
Article 2, must be ensured in accordance with national legislation and/or
national practice;

2.

in the case referred to in Article 8, the following must be ensured:

(a) the rights connected with the employment contract of workers within the
meaning of Article 2, other than those referred to in point (b) below;

29

3.

4.

(b) maintenance of a payment to, and/or entitlement to an adequate allowance

for, workers within the meaning of Article 2;

the allowance referred to in point 2 (b) shall be deemed adequate if it
guarantees income at least equivalent to that which the worker concerned
would receive in the event of a break in her activities on grounds connected
with her state of health, subject to any ceiling laid down under national
legislation;

Member States may make entitlement to pay or the allowance referred to in
points 1 and 2 (b) conditional upon the worker concerned fulfilling the
conditions of eligibilty for such benefits laid down under national legislation.

These conditions may under no circumstances provide for periods of previous
employment in excess of 12 months immediately prior to the presumed date of
confinement.

Article 12

Defence of rights

Member States shall introduce into their national legal systems such measures as are
necessary to enable all workers who should themselves wronged by failure to comply
with the obligations arising from this Directive to pursue their claims by judicial
process (and/or, in accordance with national laws and/or practices) by recourse to
other competent authorities.

Article 13

Amendments to the Annexes

1. Strictly technical adjustments to Annex I as a result of technical progress, changes
in international regulations or specifications and new findings in the area covered by
this Directive shall be adopted in accordance with the procedure laid down in Article
17 of Directive 89/391/EEC.

2. Annex II may be amended only in accordance with the procedure laid down in
Article 118a of the Treaty.

Article 14

Final provisions

1. Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive not later than two years after the
adoption thereof or ensure, at the latest two years after adoption of this Directive, that
the two sides of industry introduce the requisite provisions by means of collective
agreements, with Member States being required to make all the necessary provisions

30

to enable them at all times to guarantee the results laid down by this Directive. They
shall forthwith inform the Commission thereof.

2. When Member States adopt the measures referred to in paragraph 1, they shall
contain a reference of this Directive or shall be accompanied by such reference on the
occasion of their official publication. The methods of making such a reference shall
be laid down by the Member States.

3. Member States shall communicate to the Commission the texts of the essential
provisions of national law which they have already adopted or adopt in the field
governed by this Directive.

4. Member States shall report to the Commission every five years on the practical
implementation of the provisions of this Directive, indicating the points of view of the
two sides of industry.

However, Member States shall report for the first time to the Commission on the
practical implementation of the provisions of this Directive, indicating the points of
view of the two sides of industry, four years after its adoption.

The Commission shall inform the European Parliament, the Council, the Economic
and Social Committee and the Advisory Committee on Safety, Hygiene and Health
Protection at Work.

5. The Commission shall periodically submit to the European Parliament, the Council
and the Economic and Social Committee a report on the implementation of this
Directive, taking into account paragraphs 1, 2 and 3.

6. The Council will re-examine this Directive, on the basis of an assessment carried
out on the basis of the reports referred to in the second subparagraph of paragraph 4
and, should the need arise, of a proposal, to be submitted by the Commission at the
latest five years after adoption of the Directive.

Article 15

This Directive is addressed to the Member States.

Done at Luxembourg, 19 October 1992

For the Council
The President
D. CURRY

31

NON-EXHAUSTIVE LIST OF AGENTS, PROCESSES AND WORKING CONDITIONS

ANNEX I

referred to in Article 4 (1)

A. Agents

1. Physical agents where these are regarded as agents causing foetal lesions and/or

likely to disrupt placental attachment, and in particular:

(a)shocks, vibration or movement;

(b)handling of loads entailing risks, particularly of a dorsolumbar nature;

(c)noise;

(d)ionizing radiation(*);

(e)non-ionizing radiation;

(f)extremes of cold or heat;

(g)movements and postures, travelling - either inside or outside the establishment
mental and physical fatigue and other physical burdens connected with the
activity of the worker within the meaning of Article 2 of the Directive.

2. Biological agents

Biological agents of risk groups 2, 3 and 4 within the meaning of Article 2 (d)
numbers 2, 3 and 4 of Directive 90/679/EEC1, in so far as it is known that these
agents or the therapeutic measures necessitated by such agents endanger the
health of pregnant women and the unborn child and in so far as they do not yet
appear in Annex II.

3. Chemical agents

The following chemical agents in so far as it is known that they endanger the
health of pregnant women and the unborn child and in so far as they do not yet
appear in Annex II :

(a) substances labelled R 40, R 45, R 46, and R 47 under Directive 67/548/EEC2

in so far as they do not yet appear in Annex II;

(b)chemical agents in Annex I to Directive 90/394/EEC3;

(*) See Directive 80/836/Euratom (OJ L 246, 17. 9. 1980, p. 1).
1 OJ L 374, 31. 12. 1990, p. 1.
2 OJ L 196, 16. 8.1967, p. 1. Directive as last amended by Directive 90/517/EEC (OJ L 287,
19. 10. 1990, p. 37).
3 OJ L 196, 26. 7. 90, p. 1.

32

(c) mercury and mercury derivatives;

(d)antimitotic drugs;

(e) carbon monoxide;

(f) chemical agents of known and dangerous percutaneous absorption.

B. Processes

- Industrial processes listed in Annex I to Directive 90/394/EEC.

C. Working conditions

- Underground mining work.

33

ANNEX II

NON-EXHAUSTIVE LIST OF AGENTS AND WORKING CONDITIONS

referred to in Article 6

A.

Pregnant workers within the meaning of Article 2 (a)

1.

Agents

(a)

Physical agents

Work in hyperbaric atmosphere, e.g. pressurized enclosures and
underwater diving.

(b)

Biological agents

The following biological agents:

-

-

toxoplasma,

rubella virus,

unless the pregnant workers are proved to be adequately
protected against such agents by immunization.

(c)

Chemical agents

Lead and lead derivatives in so far as these agents are capable
of being absorbed by the human organism.

2.

Working conditions

Underground mining work

B.

Workers who are breastfeeding within the meaning of Article 2 (c)

1.

Agents

(a)

Chemical agents

Lead and lead derivatives in so far as these agents are capable
of being absorbed by the human organism.

2.

Working conditions

Underground mining work.

34

ANNEX 2

Questionnaire for the Report concerning the evaluation of Council Directive
92/85/EEC 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

INTRODUCTORY REMARKS

This questionnaire consists of 25 questions relating to the articles of Council Directive
92/85/EEC. As stated in article 14.4. second paragraph of the Directive, the practical
implementation of the provisions of the Directive, as well as the views of both sides of
industry, should be indicated in the answers.

Where the provisions of the Directive have been implemented through legislation or
collective agreement, please indicate the applicable article and instrument, and annex the
text of the legislative measure or collective agreement to the response.

Please indicate which category of workers are covered by the different national
regulations or collective agreements implementing the Directive.

Where applicable, please answer the questions separately with respect to workers in the
private and public sectors.

Unless otherwise stated, all references in the questionnaire refer to the 92/85 Directive.

ARTICLE 2: PERSONS PROTECTED

Article 2 a:

Question 1a: For the purposes of the directive, who are considered as pregnant workers
in your Member State ?

Question 1b: Does this definition cover employees/persons who are:

i) under fixed term contracts,

ii) under temporary contracts,

Article 2 b:

Question 2: Under your national legislation and/or practice, how do you define a worker
who has recently given birth?

Article 2 c:

Question 3: Under your national legislation and/or practice, how do you define a worker
who is breastfeeding?

35

Article 2 a-c:

Question 4a: For the purposes of the Directive, is the protection in your Member State,
dependent on the fact of the worker having informed the employer of the pregnancy?

Question 4b: How long before the commencement of maternity leave must the worker
inform the employer of the pregnancy?

Question 4c: What other requirements have to be fulfilled for the employer to be
considered informed of the pregnancy for the purposes of the Directive in accordance
with national legislation and/or national practice?

ARTICLES 3 AND 4: ASSESSMENT OF HAZARDOUS AGENTS AND
PROCESSES

Article 3.1

Question 5: Whilst awaiting the guidelines, which are being drawn up by the
Commission with the assistance of the Advisory Committee on Safety, Hygiene and
Health Protection at Work, what guidelines are being used in your Member State for risk
assessment?

Article 4

Question 6: In your Member State, which authority is responsible for monitoring the
obligations of employers, particularly those relating to risk assessment and measures to
be adopted as a result thereof? Is the same national authority required to ensure that
workers likely to be in one of the situations referred to in Article 2 and/or their
representatives are informed in accordance with the provisions of the Directive?

ARTICLES 5 AND 6: ACTION FURTHER TO THE ASSESSMENT AND
PROHIBITION OF EXPOSURE

Article 5

Question 7: What legislative and/or practical measures have been taken at national level
to ensure that, if the assessment reveals that they are exposed to risks to their safety and
health, the workers referred to in Article 2 benefit from the measures laid down in
Article 5, ranging from a temporary adjustment of working conditions and/or working
hours, through a move to another job, to the granting of leave for the whole of the period
necessary?

Article 6

Question 8: What legislative and/or practical measures have been introduced at national
level to prevent pregnant or breastfeeding workers from performing duties for which the
assessment has revealed a risk of exposure, which would jeopardise safety or health, to
the agents and working conditions listed in Annex II, Sections A and B respectively?

36

ARTICLE 7: NIGHTWORK

Article 7.1:

Question 9a: What measures in national legislation and/or national practice exist to
ensure that workers referred to in article 2 are not obliged to perform night work during
their pregnancy?

Question 9b: Is the non-performance of night work made dependent upon a submission
of a medical certificate in your Member State, and if so, what requirements and
procedures apply in relation to the submission of the medical certificate?

Question 10a: Which national authority is competent in determining the length of the
period after the childbirth during which workers referred to in article 2 are not obliged to
perform night work?

Question 10b: In your Member State, how much time is allowed after the childbirth in
which workers referred to in article 2 are not obliged to perform night work.

Question 10c: If the period, referred to in question 10a above, is established for each
individual case, what procedure applies?

Article 7.2:

Question 11: What measures in national legislation and/or national practice exist to
ensure that workers referred to in article 2, who are not obliged to perform night work
during their pregnancy, have the possibility to be transferred to daytime work?

Question 12: What measures in national legislation and/or national practices exist to
ensure that workers referred to in article 2, who are not obliged to perform night work
during their pregnancy, are granted leave when transfer to daytime work is not feasible
or cannot reasonably be required?

ARTICLES 11.1 AND 11.4: THE MAINTENANCE OF EMPLOYMENT
RIGHTS IN RELATION TO THE PROCEDURES EXISTING FOR THE
PURPOSE OF ARTICLES 5, 6 AND 7.

Article 11.1:

Question 13a: What measures in national legislation and/or national practice exist to
ensure that workers referred to in article 2 whose working conditions, in terms of place
of work, working hours etc, are modified, under the procedures existing for the purposes
of articles 5-7, maintain their employment rights relating to the employment contract?

Question 13b: What measures in national legislation and/or national practice exist to
ensure that workers referred to in article 2 who are granted leave under article 5.3,
maintain their employment rights relating to the employment contract?

Question 13c: To what level of payment/allowance are workers referred to in article 2,
whose working conditions are altered in the situations specified under articles 5-7,
entitled to according to national legislation and/or national practice?

37

Question 13d: What level of payment/allowance is a worker, as referred to in article 2,
who are granted leave under article 5.3, entitled to according to national legislation
and/or national practice?

Question 13e: Are there any criteria to be fulfilled by workers referred to in questions
13a and 13b above ( i.e. in terms of previous time of employment or of accepting
suitable alternative work),
in order to retain their employment rights, other than
remuneration?

Article 11.4:

Question 14: In your Member State, has the entitlement to pay or allowance for workers
referred to in questions 13c and 13d above, been made conditional on the worker
concerned fulfilling any conditions of eligibility? And if so, what are these conditions?

ARTICLES 8 AND 11.2-4: MATERNITY LEAVE AND THE MAINTENANCE
OF EMPLOYMENT RIGHTS

Please answer the questions separately with respect to workers in the private and public
sectors.

Article 8.1:

Question 15a: What measures in national legislation and/or national practice exist to
ensure that workers referred to in article 2 are entitled to a continuous period of
maternity leave of at least 14 weeks?

Question 15b: How long is the period of maternity leave in your Member State?

Question 15c: When does the maternity leave formally commence according to the
national legislation and/or national practice in your Member State?

Question 15d: Is there any fixed period of time during which the maternity leave should
be taken, (e.g. in relation to the expected time of birth)?

Question 15e: Is the right to maternity leave dependant on the fulfilment of any
conditions of eligibility by workers referred to in article 2?

Article 8.2:

Question 16a: What measures in national legislation and/or national practice exist to
ensure that the continuous period of maternity leave includes a period of compulsory
maternity leave of at least 2 weeks?

Question 16b: Are there any requirements as to when the compulsory maternity leave
has to be taken (e.g. in relation to the expected date of birth)?

Article 11.2 (a):

Question 17a: What measures in national legislation and/or national practice exist to
ensure that workers on maternity leave within the meaning of article 8, maintain their
employment rights during the period of maternity leave?

38

Question 17b: Has a worker on maternity leave the right to accrue pension rights during
the period of maternity leave, and if so, under what conditions?

Article 11.2 (b):

Question 18a: What measures in national legislation and/or national practice exist to
ensure that workers on maternity leave within the meaning of article 8 maintain their pay
and/or are entitled to an adequate allowance?

Question 18b: What level of payment does a worker obtain during the maternity leave?

Question 18c: Does the remuneration vary amongst different categories of workers and
over different periods of time of the maternity leave? (If so, please describe the system
of maternity remuneration applicable in your Member State.)

Article 11.3:

Question 19: What measures in national legislation and/or practice exist to ensure that
pay received during maternity leave is comparable to an income which the worker
concerned would receive in the event of a break in her activities on the grounds
connected with her state of health? (If different levels of remuneration apply for different
categories of workers, please answer this question for the respective categories.)

Article 11.4:

Question 20: In your Member State, has the entitlement to pay or allowance for workers
on maternity leave within the meaning of article 8, been made conditional on the
fulfilment by the worker concerned of any conditions of eligibility? And if so, what are
these conditions of eligibility?

ARTICLE 9 TIME OFF FOR ANTE-NATAL EXAMINATIONS

Question 21: What measures in national legislation and/or national practice exist to
ensure that workers referred to in article 2 (a) are entitled to time off, without loss of pay,
in order to attend ante-natal examinations if these examinations have to take place during
working hours?

ARTICLE 10 PROHIBITION OF DISMISSAL

Article 10.1:

Question 22a: What measures in national legislation and/or national practice exist to
ensure the prohibition of the dismissal of workers during the period from the beginning
of their pregnancy to the end of the maternity leave within the meaning of article 8 (1)?

Question 22b: Under which, if any, circumstances in your national legislation and/or
national practice could the employer dismiss a worker during the period from the
beginning of the pregnancy to the end of the maternity leave within the meaning of
article 8 (1)?

Question 22c: Which national authority is competent to give the consent for such a
dismissal to be legally effective?

39

Question 22d: What procedure is applicable in your Member State for the employer to
obtain the consent of the competent authority?

Article 10.2:

Question 23: What measures in national legislation and/or practice exist to oblige an
employer who dismisses a worker during the period from the beginning of her
pregnancy to the end of the period of maternity leave within the meaning of article 8 (1),
to cite duly substantiated grounds for the dismissal in writing?

Article 10.3:

Question 24: What measures in national legislation and/or practice exist to ensure that
workers are protected from consequences of dismissal which is unlawful by virtue of
Article 10.1?

ARTICLE 12 DEFENCE OF RIGHTS

Question 25a: What methods of judicial protection are given to workers referred to in
article 2 in your Member State, in relation to the obligations arising from the Directive?

Question 25b: If the workers referred to in article 2 have recourse to competent
authorities other than national courts, which are these authorities?

Question 25c: Does the competence of another authority exclude the access to a national
court for the same question?

Question 25d: What other type of judicial enforcement mechanisms exist
Member State in the area covered by the Directive?

in your

40

ANNEX 3

NATIONAL PROVISIONS COMMUNICATED BY THE MEMBER STATES
CONCERNING: 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)

BELGIUM

Loi du 16/03/1971 modifiée par la Loi du 03/04/1995 et l'arrêté royal du 02/05/1995,
Moniteur belge

DENMARK

Bekendtgørelse nr. 497 af 29/6/1998 af Lov om arbejdsmiljø.

Bekendtgørelse nr. 867 af 13/10/1994 om arbejdets udførelse.

Arbejdsministeriets bekendtgørelse nr. 439 af 1/10/1997 om virksomhedernes
sikkerheds- og sundhedsarbejde.

Bekentgørelse nr. 686 af 11/10/1990 af lov om ligebehandling af mænd og kvinder
med hensyn til beskæftigelse og barselor lov m.v. Arbejdsmin. 1. kt. j.nr. 1440.24.
Lovtidende A 1990 hæfte nr. 113 udgivet den 23/10/1990 s. 2461. ALOV

Lov nr. 412 af 01/06/1994 om ændring af lov om ligevehandling af mænd og kvinder
med hensyn til beskæffigelse og barselorlov m.v. Arbejdsmin.,
j.nr. 92-5232-1.
Lovtidende A 1994 hæfte nr. 84 udgivet den 02/06/1994 s. 1959. ALOV

Lov nr. 852 af 20/12/1989 om dagpenge ved sygdom eller fødsel. Socialmin.1.kt.j.nr.
1600-26. Lovtidende A hæfte 124 udgivet den 21/12/1989 s.3254. RLOV.

Lov nr. 447 af 01/06/1994 om ændring af lov om dagpendge ved sygdom eller fødsel.
Socialmin., j.nr. 5210-42. Lovtidende A 1994 hæfte nr. 85 udgivet den 02/06/1994 s.
2094. RLOV

Bekendtgørelse nr. 127 af 06/03/1996 om arbejdets udførelse m.v. på havanlæg.
Energistyrelsen,
j.nr. 4012-0014. Lovtidende A 1996 hæfte nr. 32 udgivet den
15/03/1996 s. 1211. MBEK

Lov nr. 292 af 10/06/1981 om visse havanlæg. Energimin.j.nr. 130 22-81.
Folketingstid. 1980-81 : 7936, 8806, 12109, 12523; A: 4421; C:741. Lovtidende A
hæfte 39 udgivet den 19/06/1981 s. 754

Bekendtgørelse nr. 711 af 16/11/1987 om sikkerhed m.v. på havanlæg. Energimin.
4612-1. Lovtidende A hæfte 97 udgivet den 24/11/1987 s. 2644

Bekendtgørelse nr. 825 af 20/09/1994 om gravide søfarendes ret til fratræden og fri
hjemrejse. Industri- og Samordningsmin., Søfartsstyrelsen, Arbejdsmiljøkontoret, j.nr.
4101-23. Lovtidende A 1994 hæfte nr. 155 udgivet den 30/09/1994 s. 4748. TBEK

41

Trafikministeriets bekendtgørelse nr. 162 af 07/03/1994 af lov om luftfart. Trafikmin.,
j.nr. 1994-201-1. Lovtidende A 1994 hæfte nr. 35 udgivet den 18/03/1994 s. 697.
OLOV

Lov nr. 1226 af 27/12/1996 om ændring af lov om dagpenge ved sygdom eller fødsel.
Socialmin., kontantydelseskontoret, j.nr. 5210-105. Lovtidende A 1996 hæfte nr. 200
udgivet den 28/12/1996 s. 7235. RLOV

Bekendtgørelse nr. 549 af 23/06/1994 af lov om dagpenge ved sygdom eller fødsel.
Socialmin. 1.2.kt.,j.nr. 5210-48. Lovtidende A 1994 hæfte nr. 102 udgivet den
01/07/1994 s. 2855. RLOV

Bekendtgørelse nr. 875 af 17/10/1994 af lov om ligebehandling af mænd og kvinder
med hensyn til beskæftigelse og barselorlov m.v. Arbejdsmin. 1.kt. j.nr. 94-5239-1.
Lovtidende A 1994 hæfte nr. 168 udgivet den 28/10/1994 s. 5091. ALOV

Teknisk forskrift om arbejdets udførelse om bord i skibe. Søfartsstyrelsens tekniske
forskrift nr. 3 af 07/04/1995. Arbejdsmiljøkontoret,j.nr. 4101-11

Vurdering
(arbejdspladsvurdering). At-anvisning Nr. 4.0.0.1 August 1994

sunhedsforholdene

sikkerheds-

og

af

på

arbejdspladsen

Gravide og ammendes arbejdsmiljø. At-anvisning Nr. 4.0.0.2 Oktober 1996

Bestemmelser om helbredskrav. Statens Luftfartvæsen. Bestemmelser
luftfart. BL 6-05. Udgave 3 af 30/07/1990

for civil

Bekendtgørelse nr. 191 af 23/05/1975 vedrørende luftfartscertifikater. Min. f. off. arb.
j.nr. G. 22-10-25. Lovtidende A 1975 hæfte nr. 20 udgivet den 31/05/1975

Højesteretsdomme af 15/03/1993 i sag 314/1991 Handels- og Kontorfunktionærernes
Forbund i Danmark mod Dansk Arbejdsgiverforening

Bekendtgørelse
Søfartsstyrelsen,
s.4125. TLOV.

766

nr.
Sømandsloven. Erhvervsmin.
j.nr. 4101-27. Lovtidende A hæfte 145 udgivet den 29/09/1995

19/09/1995

af

af

Bekendtgørelse nr. 594 af 26/06/1996 af Lov om skibes sikkerhed. Erhvervsmin.,
j.nr. 5000-2. Lovtidende A 1996 hæfte nr. 106 udgivet den
Søfartsstyrelsen,
05/07/1996 s. 3461. TLOV

Bekendtgørelse nr. 172 af 13/03/1990 om dagpenge til søfarende ved sygdom eller
fødsel. Socialmin.1.kt.j.nr. 1600-30. Lovtidende A 1990 hæfte nr. 26 udgivet den
23/03/1990 s. 565. RBEK

GERMANY

Gesetz zur Änderung des Mutterschutzrechts vom 20/12/1996, Bundesgesetzblatt Teil
I vom 30/01/1996 Seite 2110

42

zur
Verordnung
(Mutterschutzrichtlinienverordnung
Bundesgesetzblatt Teil I vom 18/04/1997 Seite 782

ergänzenden Umsetzung

-

der
MuSchRiV)

EG-Mutterschutz-Richtlinie
15/04/1997,

vom

GREECE

Loi numéro 1483/1984

Loi numéro 1414/1984

Décret présidentiel numéro 176/97 du 02/07/1997, FEK A numéro 150 du 15/07/1997
Page 6283

SPAIN

Orden de 09/03/1971, Boletín Oficial del Estado de 16/03/1971

Ley número 8/80 de 10/03/1980, sobre el Estatuto de los Trabajadores, Boletín Oficial
del Estado número 64 de 14/03/1980

Ley número 3/89 de 03/03/1989, por la que se amplía a 16 semanas el permiso por
maternidad y se establecen medidas para favorecer la igualdad de trato de la mujer en
el
trabajo, Boletín Oficial del Estado número 57 de 08/03/1989 Página 6504
(Marginal 5272)

Decreto Ley número 2065/74 de 30/03/1974, Boletín Oficial del Estado de
22/07/1974

Ley número 8/88 de 07/04/1988, sobre infracciones y sanciones en el Orden social,
Boletín Oficial del Estado número 91 de 15/04/1988 Página 11427

Real decreto legislativo número 521/90 de 27/04/1990, por el que se aprueba el texto
articulado de la Ley de Procedimiento Laboral, Boletín Oficial del Estado número 105
de 02/05/1990 Página 11800 (Marginal 9915)

Ley número 31/95 de 08/11/1995, de Prevención de Riesgos Laborales, Boletín
Oficial del Estado número 269 de 10/11/1995 Página 32590 (Marginal 24292)

Real decreto legislativo número 1/95 de 24/03/1995, por el que se aprueba el texto
refundido de la Ley del Estatuto de los Trabajadores, Boletín Oficial del Estado
número 75 de 29/03/1995 Página 9654 (Marginal 7730)

Ley número 42/94 de 30/12/1994, de Medidas fiscales, administrativas y de orden
social, Boletín Oficial del Estado número 313 de 31/12/1994 Página 273 (Marginal
28968)

Real decreto legislativo número 2/95 de 07/04/1995, por el que se aprueba el texto
refundido de la Ley de Procedimiento Laboral, Boletín Oficial del Estado número 86
de 11/04/1995 Página 10695 (Marginal 8758)

FRANCE

43

Décret no 96-364 du 30 avril 1996 relatif à la protection des travailleuses enceintes ou
allaitantes contre les risques résultant de leur exposition à des agents chimiques,
biologiques et physiques et modifiant notamment le code du travail (deuxième partie:
Décrets en Conseil d'Etat), Journal Officiel du 02/05/1996, Page 6613.

IRELAND

The Safety, Health and Welfare at Work (Pregnant Employees etc) Regulations, 1994

Statutory Instruments number 446 of 1994

The Maternity Protection Act, 1994

The Maternity Protection Act, 1994 (Commencement) Order, 1995, Statutory
Instruments number 16 of 1995

The Maternity Protection (Disputes and Appeals) Regulations, 1995, Statutory
Instruments number 17 of 1995

The Maternity Protection (Time off for Ante-Natal and Post-Natal Care) Regulations,
1995, Statutory Instruments number 18 of 1995

The Maternity Protection (Health and Safety Leave Certification) Regulations, 1995,
Statutory Instruments number 19 of 1995

The Maternity Protection (Health and Safety Leave Remuneration) Regulations, 1995,
Statutory Instruments number 20 of 1995

European Communities (Social Welfare) Regulations, 1994, Statutory Instruments
number 312 of 1994

The Social Welfare (Health and Safety Benefit) Regulations, 1994, Statutory
Instruments number 313 of 1994

The Social Welfare Regulations, 1995, Statutory Instruments number 25 of 1995

The Social Welfare (Consolidated Payments Provisions) (Amendment) Regulations,
1995, Statutory Instruments number 26 of 1995

ITALY

Legge del 30/12/1971 n. 1204, tutela delle lavoratrici madri, Gazzetta Ufficiale - Serie
generale - del 18/01/1972 n. 14 pag. 412

Decreto del Presidente della Repubblica del 25/11/1976 n. 1026, regolamento di
esecuzione della legge 30 dicembre 1971, n. 1204, sulla tutela delle lavoratrici madri,
Gazzetta Ufficiale - Serie generale - del 16/03/1977 n. 72

Decreto legislativo del 25/11/1996 n. 645, recepimento della direttiva 92/85/CEE
concernente il miglioramento della sicurezza e della salute sul lavoro delle lavoratrici
gestanti, puerpere o in periodo di allattamento, Gazzetta Ufficiale - Serie generale -
del 21/12/1996 n. 299 pag. 17

44

LUXEMBOURG

Loi portant modification A) de la loi du 03/07/1975 concernant 1. la protection de la
maternité de la femme au travail; 2. la modification de l'article 13 du code des
assurances sociales modifié par la loi du 02/05/1974, B) de l'article 25 du code des
assurances sociales du 07/07/1998, Mémorial A Page 1066

NETHERLANDS

Ziektewet

Besluit zwangere werkneemsters van 2. Mei 1994

Arbeidsomstandighedenwet

Loodbesluit, new article 14a

Arbeidstijdenwet

Burgerlijk Wetboek

AUSTRIA

Gesetz vom 15/12/1994 , mit dem das Gesetz über den Mutterschutz und den
Karenzurlaub geändert und das EWR-Recht angepaßt wird, Landesgesetzblatt für
Kärnten, Nr. 21/1995

Mutterschutzgesetz 1979 (MSchG), Bundesgesetzblatt für die Republik Österreich,
Nr. 221, idF BGBl. Nr. 434/1995

Landarbeitsgesetz 1984, Bundesgesetzblatt für die Republik Österreich, Nr. 287/1984,
idF BGBl. Nr. 514/1994

Kundmachung des Reichsstatthalters in Österreich, wodurch die Beordnung zur
Einführung von Arbeitszeitvorschriften im Lande Österreich vom 7. Februar 1939
bekanntgemacht wird (Arbeitszeitordnung), Reichsgesetzblatt Nr. 231/1939

Verordnung des Bundesministers für soziale Verwaltung vom 25. Juli 1973 über den
Schutz des Lebens und der Gesundheit der Arbeitnehmer bei Arbeiten in Druckluft
sowie
Taucherarbeiten-Verordnung),
(Druckluft-
Bundesgesetzblatt für die Republik Österreich, Nr. 501/1973, idF BGBl. 450/1994

Taucherarbeiten

und

bei

(Arbeitsvertragsrecht-Anpassungsgesetz

Bundesgesetz, mit dem arbeitsvertragsrechtliche Bestimmungen an das EG-Recht
das
angepaßt
Angestelltengesetz,
und
für die Republik
Hausangestelltengesetz geändert werden, Bundesgesetzblatt
Österreich, Nr. 459/1993, idF BGBl. Nr. 450/1994

und
das Hausgehilfen-

das Gutsangestelltengesetz

AVRAG)

-
und

Allgemeines Sozialversicherungsgesetz (ASVG), Bundesgesetzblatt Nr. 189/1955,
idF BGBl. Nr. 895/1995

Liste der Berufskrankeiten, Anlage 1 zum ASVG

45

Bundesgesetz vom 7. März 1985 über die Arbeits- und Sozialgerichtsbarkeit (Arbeits-
und Sozialgerichtsgesetz - ASGG), Bundesgesetzblatt für die Republik Österreich, Nr.
104/1985, idF BGBl. Nr. 133/1995

Gesetz
Landesgesetzblatt für Kärnten, Nr. 9/1992 , ausgegeben am 29/01/1992

den Mutterschutz

vom 07/11/1991

über

und

den Karenzurlaub,

Gesetz, mit dem die Vertragsbedienstetenordnung 1995 geändert wird (2. Novelle zur
Vertragsbedienstetenordnung 1995), Landesgesetzblatt für Wien, Nr. 32/1996

Gesetz , mit dem die Dienstordnung 1994 geändert wird (2. Novelle zur
Dienstordnung 1994), Landesgesetzblatt für Wien, Nr. 33/1996, ausgegeben am
24/07/1996

Gesetz vom 22/04/1997 mit dem das Gesetz über den Mutterschutz und den
73/1997
Karenzurlaub
herausgegeben am 04/08/1997

geändert wird, Landesgesetzblatt

für Kärnten, Nr.

Gehaltsgesetz
das

Gesetz vom 29/02/1996, mit dem das O.ö. Landesbeamtengesetz 1993, das als
Landes-
geltende
Landesgesetz
O.ö.
Vertragsbedienstetengesetz,
Mutterschutzgesetz
und
Bestimmungen über das Ausmaß der Lehrverpflichtung für Vertragslehrer an
Musikschulen der o.ö. Gemeinden erlassen werden (O.ö. Dienstrechtsänderngsgesetz
1996), Landesgesetzblatt für Oberösterreich, Nr. 37/1996, ausgegeben und versendet
am 15/05/1996

das O.ö. Karenzurlaubsgeldgesetz

Landesbeamten-Pensionsgesetz,

geändert

1956,

O.ö.

und

das

das

PORTUGAL

Lei n.° 17/95 de 09/06/1995. Altera a Lei n.° 4/84, de 5 de Abril (protecção da
maternidade e da paternidade), Diário da República I Série A n.° 134 de 09/06/1995
Página 3754

Decreto-Lei n.° 333/95 de 23/12/1995. Altera o regime de protecção social dos
beneficiários do regime geral da segurança social, Diário da República I Série A n.°
295 de 23/12/1995 Página 8076

Decreto-Lei n.° 332/95 de 23/12/1995. Altera o regime jurídico do contrato individual
de trabalho, incluindo o trabalho rural e o serviço doméstico, Diário da República I
Série A n.° 295 de 23/12/1995 Página 8074

Portaria n.° 229/96 de 26/06/1996. Fixa os agentes processos e condições de trabalho
proibidos ou condicionados às mulheres gávidas, puérperas e lactantes, Diário da
República I Série B n.° 146 de 26/06/1996 Página 1622

FINLAND

Työsopimuslaki (320/70) 30/04/1970, muutos (824/94) 16/09/1994

Merimieslaki (423/78) 07/06/1978

SWEDEN

46

Arbetsmiljölag, Svensk författningssamling (SFS) 1977:1160, ändring SFS 1994:579

Arbetsmiljöförordning, Svensk författningssamling (SFS) 1977:1166, ändring SFS
1994:580

Arbetarskyddsstyrelsens
Arbetarskyddsstyrelsens författningssamling (AFS) 1994:32

föreskrifterna om gravida och ammande arbetstagare,

Föräldraledighetslag, Svensk författningssamling (SFS) 1995:584

Förordning med instruktion för Arbetarskyddsverket, Svensk författningssamling
(SFS) 1988:730

Arbetarskyddsstyrelsens författningssamling (AFS) 1993:57

Arbetarskyddsstyrelsens författningssamling (AFS) 1993:34

Arbetarskyddsstyrelsens författningssamling (AFS) 1992:17

Arbetarskyddsstyrelsens författningssamling (AFS) 1986:17

Arbetarskyddsstyrelsens författningssamling (AFS) 1995:1

Lag om allmän försäkring, Svensk författningssamling (SFS) 1962:381

Lag om anställningsskydd, Svensk författningssamling (SFS) 1982:80

råd om
Arbetarskyddsstyrelsens
tillämpningen av föreskrifterna, Arbetarskyddsstyrelsens författningssamling (AFS)
1997:3

föreskrifter om bergarbete

allmänna

samt

UNITED KINGDOM

The Protection of Pregnant Workers Regulations 1996, Legal Notice No. 12 of 1996,
Gibraltar Gazette No. 2,894 of 25/01/1996

Maternity (Compulsory Leave) Regulations 1994

Employment Rights Act 1996

Social Security Contributions and Benefits Act 1992

Social Security Act 1989

Management of Health and Safety at Work (Amendment) Regulations 1994

47