North Western Health Board v Margaret McKenna.
Date: 2005-09-08
29. It must be recalled in this regard that the continued payment of wages to a worker in the event of illness falls within the concept of ‘pay’ within the meaning of Article 141 EC (Case 171/88 Rinner-Kühn [1988] ECR 2743, paragraph 7), a concept which comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his or her employment from his or her employer, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis (Case C-66/96 Høj Pedersen and Others  [1998] ECR I-7327, paragraph 32).
30. Pay within the terms of Article 141 EC and Directive 75/117 cannot also come within the scope of Directive 76/207.  As is clear from the second recital in its preamble, Directive 76/207 does not apply to ‘pay’ within the meaning of the abovementioned provisions (see Case C‑342/93 Gillespie and Others [1996] ECR I‑475, paragraph 24).
33. The rules established thus come within the scope of Article 141 EC and Directive 75/117 (see by way of analogy, in respect of a system for acquiring entitlement to a higher salary on the basis of rules on seniority, Case C‑184/89 Nimz [1991] ECR I‑297, paragraphs 9 and 10).
42. In this area, the objective pursued by those rules is to protect female workers before and after they have given birth (see, in connection with maternity leave, Gillespie and Others , cited above, paragraph 20).
44. The Court has ruled that a woman is protected, during her maternity leave, against dismissal due to absence (Case C‑179/88 Handels- og Kontorfunktionærernes Forbund  [1990] ECR I‑3979, paragraph 15).
45. By contrast, in the case of an illness manifesting itself after such maternity leave, the Court has ruled there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness, and that such a pathological condition is covered by the general rules applicable in the event of illness.  With regard to such a situation, the Court concluded that Community law does not preclude dismissals which are the result of absences due to an illness attributable to pregnancy or confinement ( Handels- og Kontorfunktionærernes Forbund , cited above, paragraphs 16 and 19).
46. With regard to the possibility of a female worker being dismissed by reason of a pregnancy-related illness which arose prior to her maternity leave, the Court has held that, although pregnancy is not in any way comparable to a pathological condition, it 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.  The Court found that those disorders and complications, which could cause incapacity for work, formed part of the risks inherent in the condition of pregnancy and were thus a specific feature of that condition (Case C‑394/96 Brown  [1998] ECR I‑4185, paragraph 22).
47. The Court accordingly ruled that protection against dismissal had to be accorded to women not only during maternity leave but also for the entire duration of their pregnancy, after stressing that the risk of dismissal may detrimentally affect the physical and mental state of female workers who are pregnant or have recently given birth, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy.  The Court held that 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.  From this the Court concluded that such a dismissal can affect only women and therefore constitutes direct discrimination on grounds of sex ( Brown , cited above, paragraphs 18 and 24).
48. In view of the harmful effects which the risk of dismissal may have on the physical and mental state of pregnant workers, workers who have recently given birth or those who are breastfeeding, 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 within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1) laid down a prohibition of dismissal during a period from the beginning of pregnancy to the end of maternity leave.
50. The Court has pointed out in this regard that women who are on maternity leave are in a special position which requires them to be afforded special protection, but which is not comparable either to that of a man or to that of a woman actually at work ( Gillespie and Others , paragraph 17).  The Court went on to rule that neither Article 119 of the EEC Treaty (which became Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC)) nor Article 1 of Directive 75/117 required that women should continue to receive full pay during maternity leave, while stating that 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 ( Gillespie and Others , paragraph 20).
52. The Court has also ruled, by way of an interpretation given in the context of a dismissal but valid also in regard to the remuneration paid to a female worker, that, 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.  The Court added that 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 ( Brown , paragraph 26).  The Court thus acknowledged that a pathological condition linked to pregnancy or childbirth and arising after maternity leave may result in a reduction in remuneration under the same conditions as any other illness.
53. With regard to the case of a pregnancy-related illness affecting a worker before her maternity leave, the Court pointed out in paragraph 33 of its judgment in Høj Pedersen and Others , cited above, replicating the terms used in paragraph 22 of its judgment in Brown , that the disorders and complications linked to pregnancy, 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.  The Court went on to point out that, within the context of the dispute in the main proceedings, a woman was deprived, before the beginning of her maternity leave, of her full pay when her incapacity for work was the result of a pregnancy-related pathological condition, even though, under the national legislation in issue, all workers were in principle entitled to continue to be paid in full in the event of incapacity for work.  In those circumstances, the Court ruled that the application of legislative provisions such as those at issue in the main proceedings in that case involved discrimination against women ( Høj Pedersen and Others , paragraphs 34, 35 and 37).
59. Next, it is necessary to bear in mind that, as Community law stands at present, no general provision or principle thereof requires that women should continue to receive full pay during maternity leave, provided that the amount of remuneration payable is not so low as to undermine the Community-law objective of protecting female workers, in particular before giving birth (see, to that effect, Gillespie and Others , paragraph 20).