Joan Gillespie and others v Northern Health and Social Services Boards, Department of Health and Social Services, Eastern Health and Social Services Board and Southern Health and Social Services Board.
Date: 1996-02-13
12 The definition in the second paragraph of Article 119 provides that the concept of pay used in the abovementioned provisions includes all consideration which workers receive directly or indirectly from their employers in respect of their employment. The legal nature of such consideration is not important for the purposes of the application of Article 119 provided that it is granted in respect of employment (see Case 12/81 Garland v British Rail Engineering [1982] ECR 359, paragraph 10).
13 Consideration classified as pay includes, inter alia, consideration paid by the employer by virtue of legislative provisions and under a contract of employment whose purpose is to ensure that workers receive income even where, in certain cases specified by the legislature, they are not performing any work provided for in their contracts of employment (see Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Boetel [1992] ECR I-3589, paragraphs 14 and 15; also Case C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I- 2591, paragraph 11, and Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, paragraph 12).
14 It follows that, since the benefit paid by an employer under legislation or collective agreements to a woman on maternity leave is based on the employment relationship, it constitutes pay within the meaning of Article 119 of the Treaty and Directive 75/117.
16 It is well settled that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Case C-279/93 Finanzamt Koeln-Altstadt v Schumacker [1995] ECR I-225, paragraph 30).
17 The present case is concerned with women taking maternity leave provided for by national legislation. They are in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or with that of a woman actually at work.
18 As to whether Community law requires women on maternity leave to continue to receive full pay or lays down specific criteria determining the amount of benefit payable during maternity leave, Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1) provides for various measures to protect inter alia the safety and health of female workers, especially before and after giving birth. Those measures include, as regards rights connected with contracts of employment, a continuous period of maternity leave of at least 14 weeks, including compulsory maternity leave of at least two weeks, and maintenance of a payment to, and/or entitlement to an adequate allowance for, female workers covered by the directive.
20 That being so, it follows that at the material time neither Article 119 of the EEC Treaty nor Article 1 of Directive 75/117 required that women should continue to receive full pay during maternity leave. Nor did those provisions lay down any specific criteria for determining the amount of benefit to be paid to them during that period. The amount payable could not, however, be so low as to undermine the purpose of maternity leave, namely the protection of women before and after giving birth. In order to assess the adequacy of the amount payable from that point of view, the national court must take account, not only of the length of maternity leave, but also of the other forms of social protection afforded by national law in the case of justified absence from work. There is nothing, however, to suggest that the main proceedings the amount of the benefit granted was such as to undermine the objective of protecting maternity leave.
22 The benefit paid during maternity leave is equivalent to a weekly payment calculated on the basis of the average pay received by the worker at the time when she was actually working and which was paid to her week by week, just like any other worker. The principle of non-discrimination therefore requires that a woman who is still linked to her employer by a contract of employment or by an employment relationship during maternity leave must, like any other worker, benefit from any pay rise, even if backdated, which is awarded between the beginning of the period covered by reference pay and the end of maternity leave. To deny such an increase to a woman on maternity leave would discriminate against her purely in her capacity as a worker since, had she not been pregnant, she would have received the pay rise.
Directive 76/207
24 In that regard, it should be borne in mind that the benefit paid during maternity leave constitutes pay and therefore falls within the scope of Article 119 of the Treaty and Directive 75/117. It cannot therefore be covered by Directive 76/207 as well. That directive, as is clear from its second recital in the preamble, does not apply to pay within the meaning of the abovementioned provisions.
25 In the light of the foregoing considerations, the answer to the four questions referred by the Court of Appeal in Northern Ireland must be that the principle of equal pay laid down in Article 119 of the Treaty and set out in detail in Directive 75/117 neither requires that women should continue to receive full pay during maternity leave, nor lays down specific criteria for determining the amount of benefit payable to them during that period, provided that the amount is not set so low as to jeopardize the purpose of maternity leave. However, to the extent that it is calculated on the basis of pay received by a woman before the commencement of maternity leave, the amount of benefit must include pay rises awarded between the beginning of the period covered by reference pay and the end of maternity leave, as from the date on which they take effect.