Mary Brown v Rentokil Ltd.
Date: 1998-06-30
16 According to settled case-law of the Court of Justice, the dismissal of a female worker on account of pregnancy, or essentially on account of pregnancy, can affect only women and therefore constitutes direct discrimination on grounds of sex (see Case C-177/88 Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus [1990] ECR I-3941, paragraph 12; Hertz, cited above, paragraph 13; Case C-421/92 Habermann-Beltermann v Arbeiterwohlfahrt Bezirksverband [1994] ECR I-1657, paragraph 15; and Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567, paragraph 19).
17 As the Court pointed out in paragraph 20 of its judgment in Webb, cited above, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with `pregnancy and maternity', Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
18 It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave.  Article 10 of Directive 92/85 provides that there is to be no exception to, or derogation from, the prohibition of dismissal of pregnant women during that period, save in exceptional cases not connected with their condition (see, in this regard, paragraphs 21 and 22 of the judgment in Webb, cited above).
21 However, dismissal of a woman during pregnancy cannot be based on her inability, as a result of her condition, to perform the duties which she is contractually bound to carry out.  If such an interpretation were adopted, the protection afforded by Community law to a woman during pregnancy would be available only to pregnant women who were able to comply with the conditions of their employment contracts, with the result that the provisions of Directive 76/207 would be rendered ineffective (see Webb, cited above, paragraph 26).
22 Although pregnancy is not in any way comparable to a pathological condition (Webb, cited above, paragraph 25), the fact remains, as the Advocate General stresses in point 56 of his Opinion, that pregnancy is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of her pregnancy.  Those disorders and complications, which may cause incapacity for work, form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition.
23 In paragraph 15 of its judgment in Hertz, cited above, the Court, on the basis of Article 2(3) of Directive 76/207, also pointed out that that directive admits of national provisions guaranteeing women specific rights on account of pregnancy and maternity.  It concluded that, during the maternity leave accorded to her under national law, a woman is protected against dismissal on the grounds of her absence.
24 Although, under Article 2(3) of Directive 76/207, such protection against dismissal must be afforded to women during maternity leave (Hertz, cited above, paragraph 15), the principle of non-discrimination, for its part, requires similar protection throughout the period of pregnancy. Finally, as is clear from paragraph 22 of this judgment, dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the fact of pregnancy.  Such a dismissal can affect only women and therefore constitutes direct discrimination on grounds of sex.
25 It follows that Articles 2(1) and 5(1) of Directive 76/207 preclude dismissal of a female worker at any time during her pregnancy for absences due to incapacity for work caused by an illness resulting from that pregnancy.
26 However, where pathological conditions caused by pregnancy or childbirth arise after the end of maternity leave, they are covered by the general rules applicable in the event of illness (see, to that effect, Hertz, cited above, paragraphs 16 and 17).  In such circumstances, the sole question is whether a female worker's absences, following maternity leave, caused by her incapacity for work brought on by such disorders, are treated in the same way as a male worker's absences, of the same duration, caused by incapacity for work; if they are, there is no discrimination on grounds of sex.
27 It is also clear from all the foregoing considerations that, contrary to the Court's ruling in Case C-400/95 Larsson v Føtex Supermarked [1997] ECR I-2757, paragraph 23), where a woman is absent owing to illness resulting from pregnancy or childbirth, and that illness arose during pregnancy and persisted during and after maternity leave, her absence not only during maternity leave but also during the period extending from the start of her pregnancy to the start of her maternity leave cannot be taken into account for computation of the period justifying her dismissal under national law.  As to her absence after maternity leave, this may be taken into account under the same conditions as a man's absence, of the same duration, through incapacity for work.
30 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-342/93 Gillespie and Others v Northern Health and Social Services Board and Others [1996] ECR I-475, paragraph 16).