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Brown (Social policy) [1998] EUECJ C-394/96 (30 June 1998)
URL: http://www.bailii.org/eu/cases/EUECJ/1998/C39496.html
Cite as:
[1998] CEC 829,
[1998] ICR 790,
[1999] 1 FCR 49,
[1998] 2 CMLR 1049,
(1999) 48 BMLR 126,
[1998] IRLR 445,
[1998] EUECJ C-394/96,
[1998] ECR I-4185,
[1998] 2 FLR 649,
[1998] Fam Law 597
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE COURT
30 June 1998 (1)
(Equal treatment for men and women - Dismissal of a pregnant woman -
Absences due to illness arising from pregnancy)
In Case C-394/96,
REFERENCE to the Court under Article 177 of the EC Treaty by the House of
Lords for a preliminary ruling in the proceedings pending before that court
between
Mary Brown
and
Rentokil Limited
on the interpretation of Articles 2(1) and 5(1) of Council Directive 76/207/EEC of
9 February 1976 on the implementation of the principle of equal treatment for men
and women as regards access to employment, vocational training and promotion,
and working conditions (OJ 1976 L 39, p. 40),
THE COURT,
composed of: C. Gulmann, President of the Third and Fifth Chambers, acting as
President, H. Ragnemalm, M. Wathelet and R. Schintgen (Presidents of
Chambers), G.F. Mancini, P.J.G. Kapteyn (Rapporteur), J.L. Murray, D.A.O.
Edward, J.-P. Puissochet, P. Jann and L. Sevón, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: H. Von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
- Mrs Brown, by Colin McEachran QC, and Ian Truscott, Advocate,
instructed by Mackay Simon, Solicitors,
- Rentokil Ltd, by John Hand QC, and Gerard F. McDermott, Barrister,
instructed by Gareth T. Brown, Solicitor,
- the United Kingdom Government, by Stephanie Ridley, of the Treasury
Solicitor's Department, acting as Agent, and Dinah Rose, Barrister,
- the Commission of the European Communities, by Pieter Jan Kuyper, Legal
Adviser, and Marie Wolfcarius, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mrs Brown, Rentokil Ltd, the United
Kingdom Government and the Commission at the hearing on 16 December 1997,
after hearing the Opinion of the Advocate General at the sitting on 5 February
1998,
gives the following
Judgment
- By order of 28 November 1996, received at the Court Registry on 9 December
1996, the House of Lords referred to the Court for a preliminary ruling under
Article 177 of the EC Treaty two questions on the interpretation of Articles 2(1)
and 5(1) of Council Directive 76/207/EEC of 9 February 1976 on the
implementation of the principle of equal treatment for men and women as regards
access to employment, vocational training and promotion, and working conditions
(OJ 1976 L 39, p. 40).
- Those questions have been raised in proceedings brought by Mary Brown against
Rentokil Ltd (hereinafter 'Rentokil') in connection with her dismissal whilst
pregnant.
- According to the order for reference, Mrs Brown was employed by Rentokil as a
driver. Her job was mainly to transport and change 'Sanitact' units in shops and
other centres. In her view, it was heavy work.
- In August 1990, Mrs Brown informed Rentokil that she was pregnant. Thereafter
she had difficulties associated with the pregnancy. From 16 August 1990 onwards,
she submitted a succession of four-week certificates mentioning various pregnancy-related disorders. She did not work again after mid-August 1990.
- Rentokil's contracts of employment included a clause stipulating that, if an
employee was absent because of sickness for more than 26 weeks continuously, he
or she would be dismissed.
- On 9 November 1990, Rentokil's representatives told Mrs Brown that half of the
26-week period had run and that her employment would end on 8 February 1991
if, following an independent medical examination, she had not returned to work by
then. A letter to the same effect was sent to her on that date.
- Mrs Brown did not go back to work following that letter. The parties agree that
there was never any question of her being able to return to work before the end
of the 26-week period. By letter of 30 January 1991, which took effect on 8
February 1991, she was accordingly dismissed while pregnant. Her child was born
on 22 March 1991.
- At the time when Mrs Brown was dismissed, section 33 of the Employment
Protection (Consolidation) Act 1978 provided that an employee who was absent
from work wholly or partially because of pregnancy or confinement would, subject
to certain conditions, be entitled to return to work. In particular, the employee had
to have been in employment until immediately before the start of the 11th week
before the expected date of confinement and, at the beginning of the 11th week,
have been continuously employed for a period of not less than two years.
- According to the order for reference, on the assumption that the date on which
Mrs Brown's child was born was also the expected date of delivery, she was not
entitled, because she had not been in employment for two years as at 30 December
1990, to absent herself from work from the beginning of the 11th week before
delivery pursuant to section 33 of the Employment Protection (Consolidation) Act
1978, or to return to work at any time during the 29 weeks following delivery. She
was, however, entitled to statutory maternity pay under sections 46 to 48 of the
Social Security Act 1986.
- By order dated 5 August 1991, the Industrial Tribunal dismissed Mrs Brown's
application under the Sex Discrimination Act 1975 concerning her dismissal. The
Tribunal held that, where absence through pregnancy-related illness, but which
began long before the statutory maternity provisions could apply and subsisted
continuously thereafter, is followed by dismissal, that dismissal does not fall into the
category of dismissals which must automatically be considered discriminatory
because they are due to pregnancy.
- By order of 23 March 1992, the Employment Appeal Tribunal dismissed Mrs
Brown's appeal.
- By judgment of 18 January 1995, the Extra Division of the Court of Session
reached the preliminary conclusion that in this case there was no discrimination
within the meaning of the Sex Discrimination Act 1975. It pointed out that, since
the Court of Justice had drawn a clear distinction between pregnancy and illness
attributable to pregnancy (Case C-179/88 Handels- og Kontorfunktionærernes
Forbund i Danmark v Dansk Arbejdsgiverforening [1990] ECR I-3979 ('Hertz')), Mrs
Brown, whose absence was due to illness and who had been dismissed on account
of that illness, could not succeed.
- Mrs Brown appealed to the House of Lords, which referred the following questions
to the Court for a preliminary ruling:
'1 (a) Is it contrary to Articles 2(1) and 5(1) of Directive 76/207 of the
Council of the European Communities ("the Equal Treatment
Directive") to dismiss a female employee, at any time during her
pregnancy, as a result of absence through illness arising from that
pregnancy?
(b) Does it make any difference to the answer given to Question 1(a) that
the employee was dismissed in pursuance of a contractual provision
entitling the employer to dismiss employees, irrespective of gender,
after a stipulated number of weeks of continued absence?
2. (a) Is it contrary to Articles 2(1) and 5(1) of the Equal Treatment
Directive to dismiss a female employee as a result of absence through
illness arising from pregnancy who does not qualify for the right to
absent herself from work on account of pregnancy or childbirth for
the period specified by national law because she has not been
employed for the period imposed by national law, where dismissal
takes place during that period?
(b) Does it make any difference to the answer given to Question 2(a) that
the employee was dismissed in pursuance of a contractual provision
entitling the employer to dismiss employees, irrespective of gender,
after a stipulated number of weeks of continued absence?'
The first part of the first question
- It should be noted at the outset that the purpose of Directive 76/207, according to
Article 1(1), is to put into effect in the Member States the principle of equal
treatment for men and women as regards access to employment, vocational training
and promotion, and working conditions.
- Article 2(1) of the Directive provides that '... the principle of equal treatment shall
mean that there shall be no discrimination whatsoever on grounds of sex either
directly or indirectly by reference in particular to marital or family status'.
According to Article 5(1) of the Directive, '[a]pplication of the principle of equal
treatment with regard to working conditions, including the conditions governing
dismissal, means that men and women shall be guaranteed the same conditions
without discrimination on grounds of sex'.
- 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).
- 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.
- 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).
- In replying to the first part of the first question, which concerns Directive 76/207,
account must be taken of that general context.
- At the outset, it is clear from the documents before the Court that the question
concerns the dismissal of a female worker during her pregnancy as a result of
absences through incapacity for work arising from her pregnant condition. As
Rentokil points out, the cause of Mrs Brown's dismissal lies in the fact that she was
ill during her pregnancy to such an extent that she was unfit for work for 26 weeks.
It is common ground that her illness was attributable to her pregnancy.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The answer to the first part of the first question must therefore be 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 illness
resulting from that pregnancy.
The second part of the first question
- The second part of the first question concerns a contractual term providing that an
employer may dismiss workers of either sex after a stipulated number of weeks of
continuous absence.
- 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).
- Where it is relied on to dismiss a pregnant worker because of absences due to
incapacity for work resulting from her pregnancy, such a contractual term, applying
both to men and to women, is applied in the same way to different situations since,
as is clear from the answer given to the first part of the first question, the situation
of a pregnant worker who is unfit for work as a result of disorders associated with
her pregnancy cannot be considered to be the same as that of a male worker who
is ill and absent through incapacity for work for the same length of time.
- Consequently, application of that contractual term in circumstances such as the
present constitutes direct discrimination on grounds of sex.
- The answer to the second part of the first question must therefore be that the fact
that a female worker has been dismissed during her pregnancy on the basis of a
contractual term providing that the employer may dismiss employees of either sex
after a stipulated number of weeks of continuous absence cannot affect the answer
given to the first part of the first question.
The second question
- In view of the answer given to the first question, it is unnecessary to answer the
second question.
Costs
35. The costs incurred by the United Kingdom Government and by the Commission,
which have submitted observations to the Court, are not recoverable. Since these
proceedings are, for the parties to the main proceedings, a step in the proceedings
pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the House of Lords by order of 28
November 1996, hereby rules:
Articles 2(1) and 5(1) of Council Directive 76/207/EEC of 9 February 1976, on the
implementation of the principle of equal treatment for men and women as regards
access to employment, vocational training and promotion, and working conditions,
preclude dismissal of a female worker at any time during her pregnancy for
absences due to incapacity for work caused by illness resulting from that
pregnancy.
The fact that a female worker has been dismissed during her pregnancy on the
basis of a contractual term providing that the employer may dismiss employees of
either sex after a stipulated number of weeks of continuous absence does not affect
the answer given.
Gulmann Ragnemalm Wathelet
Schintgen
Mancini Kapteyn Murray
Edward
Puissochet Jann
Sevón
|
Delivered in open court in Luxembourg on 30 June 1998.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
1: Language of the case: English.