Margaret Boyle and Others v Equal Opportunities Commission.
Date: 1998-10-27
30 In that respect, it should be noted that it was in view of the risk that the provisions relating to maternity leave would be ineffective if rights connected with the employment contract were not maintained, that the Community legislature provided, in Article 11(2)(b) of Directive 92/85, that `maintenance of a payment to, and/or entitlement to an adequate allowance' for workers to whom the directive applies must be ensured in the case of the maternity leave referred to in Article 8.
31 The concept of pay used in Article 11 of that directive, like the definition in the second paragraph of Article 119 of the Treaty, encompasses the consideration paid directly or indirectly by the employer during the worker's maternity leave in respect of her employment (see Case C-342/93 Gillespie and Others [1996] ECR I-475, paragraph 12).  By contrast, the concept of allowance to which that provision also refers includes all income received by the worker during her maternity leave which is not paid to her by her employer pursuant to the employment relationship.
32 According to Article 11(3) of Directive 92/85, the allowance `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'.  This is intended to ensure that, during her maternity leave, the worker receives an income at least equivalent to the sickness allowance provided for by national social security legislation in the event of a break in her activities on health grounds.
33 Female workers must be guaranteed an income of that level during their maternity leave, irrespective of whether, in accordance with Article 11(2)(b) of Directive 92/85, it is paid in the form of an allowance, pay or a combination of the two.
34 Although the wording of Article 11 refers only to the adequate nature of the allowance, the income guaranteed to female workers during maternity leave must none the less also be adequate within the meaning of Article 11(3) of Directive 92/85 if it is paid in the form of pay or in conjunction with an allowance, as the case may be.
38 Since the consideration paid by an employer under legislation or an employment contract 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 Article 1 of Directive 75/117 (see the judgment in Gillespie and Others, cited above, paragraph 14).  It therefore cannot also fall within the scope of Directive 76/207.
39 Furthermore, it is settled case-law that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (see the judgment in Gillespie and Others, cited above, paragraph 16, and Case C-279/93 Schumacker [1995] ECR I-225, paragraph 30).
40 As the Community legislature acknowledged when adopting Directive 92/85, pregnant workers and workers who have recently given birth or who are breastfeeding are in an especially vulnerable situation which makes it necessary for the right to maternity leave to be granted to them but which, particularly during that leave, cannot be compared to that of a man or a woman on sick leave.
41 The maternity leave granted to a worker is intended, first, to protect a woman's biological condition during and after pregnancy and, second, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see Case 184/83 Hofmann [1984] ECR 3047, paragraph 25, and Case C-136/95 Thibault [1998] ECR I-2011, paragraph 25).
50 Furthermore, pursuant to Article 2(3) of Directive 76/207, it is for every Member State, within the limits laid down in Article 8 of Directive 92/85, to fix periods of maternity leave so as to enable female workers to be absent during the period in which the disorders inherent in pregnancy and confinement occur (Case C-179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I-3979, paragraph 15).
58 In that respect, although the Member States are required, pursuant to Article 8 of the aforesaid directive, to take the necessary measures to ensure that workers are entitled to a period of maternity leave of at least 14 weeks, those workers may waive that right, with the exception of the two weeks compulsory maternity leave provided for in paragraph 2, which, in the United Kingdom, commence on the day on which the child is born.
76 The Court has consistently held that indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, Case C-1/95 Gerster [1997] ECR I-5253, paragraph 30, and Case C-100/95 Kording [1997] ECR I-5289, paragraph 16).