United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N RANDALL (of Counsel) Reynolds Port Chamberlain Chichester House 278/282 High Holborn London WC1V 7HA
For the Respondents	MR A HILLIER (of Counsel) The Solicitor Derby City Council Council House Corporation Street Derby DE1 2FS


 


MR JUSTICE KIRKWOOD: This is an appeal by an employee against the decision of an Industrial Tribunal sitting at Nottingham on 22 September 1997 on a point concerning maternity pay.

The unanimous decision of the Industrial Tribunal that is appealed against, was that the Applicant before it was not discriminated against under Article 119 of the EEC Treaty by being paid maternity pay during her holiday periods as she would have been during term time. That is putting in a somewhat shorthand fashion the refusal of the Tribunal to grant a declaration in these terms: that is was contrary to Article 119 of the EEC Treaty for the Respondent to pay the Applicant a lower rate of pay during periods in which the Applicant was on maternity leave, even though if she was not on such leave she would not have been required to be at work in any event. The Extended Reasons for the Tribunal's decision were sent to the parties on 17 October 1997.

Mrs Edwards was employed by Derby City Council as a part-time teacher doing half-time hours from 4 November 1996. She worked at Asterdale Primary School and had in fact done so since December 1993. Mrs Edwards became pregnant and on 2 March 1997 she gave written notice to her employer that the expected date of birth was 17 August 1997 and she intended taking 18 weeks contractual maternity leave from that date.

The Teachers Conditions of Service made provisions for maternity leave. The agreed arrangement, which is not in itself challenged in any way in this appeal, was that maternity pay would be payable at the rate equal to full pay for the first four weeks of absence, 9/10 of full pay for the next two weeks of absence and at the rate of half pay for the remaining 12 weeks of absence.

In this instance the school re-opened for the Autumn term on 9 September, half-term was from 24 October to 3 November and term ended on 18 or 19 December. Accordingly, Mrs Edwards would be paid at the rate of her full pay for the four weeks until 14 September, at 9/10 of full pay until 28 September and at the rate of half pay for the balance of her maternity leave.

Mrs Edwards has expressed no challenge to that provision for the first part of the period, which fell in the school summer holidays and for which she would receive maternity pay at the rate of full pay; nor in respect of actual school term time, when teachers, not on maternity leave or other leave, worked by going into work. But she does challenge the provision in relation to the half-term. At that time, Mrs Edwards contends, teachers would not be working and would be on full pay. Like them she would not be working and, but for the maternity pay provisions she too would be on full pay in that period. But because that period fell within the last 12 weeks of her maternity leave she would only get half pay. That, she says, is discriminatory: she is discriminated against because she is pregnant and that amounts to discrimination on the grounds of sex.

Mrs Edwards' claim to the Industrial Tribunal was under Article 119 of the EEC Treaty and she sought a declaration in the terms that I have just read out.

The Industrial Tribunal held as follows:

"...the European Court decision in Gillespie shows that this does not amount to an act of discrimination. That clearly sets out that women on maternity leave "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." Further, the decision says that "Neither Article 119 of the EEC Treaty nor Article 1 of Directive 75/117/EEC 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 this case there is no challenge to the adequacy of the maternity pay. We consider that the proper approach we should take is not to compare the Applicant with employees who were away from work for a non-pregnancy reason, but to accept that pregnant workers are in a special position, which cannot be directly compared in that way."

The Industrial Tribunal then considered features of the unusual position of teachers having school term time and school holiday time. They cannot take holidays when they want, but only in accordance with the school calendar. Teachers are paid for each week whether or not they are required to be at work and each week should therefore be treated in the same way. The Tribunal concluded:

"That is the way that the maternity provisions have been established, giving a continuous eighteen week period, which ignores holiday or working time. The Applicant as a pregnant woman was paid maternity pay at an appropriate rate during those periods and we do not find that she has been discriminated against under Article 119 by being paid maternity pay during her holiday periods, as she would have been during term time. Accordingly, the applications made by the Applicant before us fail."

The case for the Appellant is that the Industrial Tribunal displayed a misunderstanding of the decision in Gillespie and confused two separate claims made in the case. It is submitted that Gillespie is not authority for the proposition that maternity leave provisions operate as a distinct code and do not interrelate with the underlying contractual arrangement. It is further submitted that emphasis should be placed upon the well-established principle that discrimination involves the application of different rules to comparable situations or the application of the same rules to different situations. The finding by the European Court of Justice in Gillespie, that pay rises negotiated during, or to take effect during, the maternity leave period are to be reflected in maternity pay for that period, shows that terms as to maternity leave and pay are integrally linked to the main contractual terms as to pay and are not a separate and distinct code. Put in another way, maternity leave is not a period of isolation from the main contract of employment but the entitlement for such leave is part and parcel of it.

Thus in looking at a question of discrimination it is necessary, it is argued, to see whether an employee not actually at work because of maternity leave, is treated less favourably than the male employee not actually at work because he is on holiday. Article 119 of the Treaty reads:

"Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.

For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer."

In Gillespie v Northern Health and Social Service Board [1996] ICR 498, the situation was that during 1988 the applicant women employed by various health services in Northern Ireland took maternity leave and received maternity pay at a rate which, in accordance with the collective agreement applicable to them, was less than their full pay. Their maternity pay was calculated by reference to the last two pay cheques received by the applicants for the two months preceding the relevant date.

In November 1988 pay increases back-dated to 1 April were agreed with the health services but, by reason of the method of calculation of maternity pay, the applicants did not benefit in their maternity pay from the increases. The Court of Appeal in Northern Ireland referred to the European Court of Justice questions for preliminary ruling as to whether Article 119 of the EEC Treaty and Counsel Directive 75/117/EC required that a woman on maternity leave must continue to receive full pay as if she was working normally for her employer and, where appropriate, a pay rise awarded before or during maternity leave, and if not, would the Community Law lay down specific criteria for determining the amount of maternity benefit?

On the question of whether maternity should be full pay, the European Court of Justice held:

"...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 EEC Treaty and [the] Directive....

Article 119 of the Treaty and article 1 of the Directive therefore preclude regulations which permit men and women to be paid at different rates for the same work or for work of equal value.

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...

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].

As to whether the 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... 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.

However, that Directive does not apply ratione temporis to the facts of the present case. It was therefore for the national legislature to set the amount of the benefit to be paid during maternity leave, having regard to the duration of such leave and the existence of any other social advantages.

That being so, it follows that at the material time neither article 119 of the EEC Treaty nor article 1 of [the] Directive 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 in the main proceedings the amount of the benefit granted was such as to undermine the objective of protecting maternity leave."

The Court then considered the pay rise question and reached this conclusion:

"As to the question whether a woman on maternity leave should receive a pay rise awarded before or during that period, the answer must be "Yes."

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."

It is right to mention that the Court also held that the benefit paid during maternity leave constitutes pay within the meaning of Article 119.

In respect of paragraph 17 of the decision, the Appellant accepts that she cannot compare her position with that of a man or that of a woman actually at work. She compares it with such people not actually work because they were on half-term holiday. During that period the only difference between her and her colleagues was that she was pregnant and they were not.

If this submission is correct the Appellant is to be treated for pay purposes as on maternity leave when the school is open, but that leave does not apply when the school is closed. It applies again when the school re-opens. That is in stark contrast with the collectively agreed terms as to maternity pay.

It seems to us that the proper approach to the circumstances that have arisen in this case is not to look at a specific period of school closure in isolation but to look at the contractual provisions as a whole. Article 119 clearly deals with pay "in respect of his employment from his employer". Salary is an annual one, payable monthly. The contractual maternity pay terms are established by reference to actual salary but form a discrete package of pay to cover a period of maternity leave. That the calculation is by reference to the number of weeks of maternity leave, does not convert it into weekly pay rather than the contractual pattern of salary paid monthly.

The terms of the Appellant's employment were in accordance with the Teachers Pay & Conditions Act 1993 and required her to work a specified number of hours as directed by the Head, those hours being spread over a school year of 195 working days. The specific term and holiday dates were to be determined by the School & College Services Sub-Committee of the Education Committee on an annual basis following consultation with the required teacher associations. Payment of remuneration was not confined to term time but was made monthly throughout the year. The Industrial Tribunal held that the School Teachers' Pay and Conditions Document was incorporated in the Appellant's contract of employment.

We have seen that Part XI, (Conditions of Employment of Teachers other than Head Teachers) applied save, as expressed to the contrary, to the Appellant. Paragraph 39 sets out Professional Duties:

"... the following duties shall be deemed to be included in the professional duties which a teacher (other than the head teacher) may be required to perform:

39.1 Teaching:

In each case having regard to the curriculum for the school;

39.1.1 planning and preparing courses and lessons;

39.1.2 teaching, according to their educational needs, the pupils assigned to him, including the setting and marking of work to be carried out by the pupil in school and elsewhere;

39.1.3 assessing, recording and reporting on the development, progress and attainment of pupils;"

Then, going down through paragraph 39, there are a number of headings: Other activities, Assessments and reports, Appraisal, Review: Further training and development, Educational methods, Discipline, Health and Safety, Staff meetings, Cover, Public examinations, Management, and Administration.

Paragraph 40 of the Conditions is expressed not to apply to teachers employed to teach part-time though it does apply to full time teachers, who would no more actually be at the school premises at half time, and to the extent that the Appellant needs to point to any full time teacher as a comparator it obviously has relevance.

Paragraph 40 deals with Working Time. 40.2 deals with days, 40.3 deals with such other duties as may be specified by the head teacher within a given number of hours. 40.7 says:

"Such a teacher shall, in addition to the requirements set out in paragraphs 40.2 and 40.3, work such additional hours as may be needed to enable him to discharge effectively his professional duties, including, in particular, the marking of pupils' work, the writing of reports on pupils and the preparation of lessons, teaching material and teaching programmes. The amount of time required for this purpose beyond the 1265 hours referred to in paragraph 40.3 and the times outside the 1265 specified hours at which duties shall be performed shall not be defined by the employer but shall depend upon the work needed to discharge the teacher's duties."

Those Conditions accordingly recognise, as it seems to us, the need for a teacher to do such work as is necessary outside specified school terms and hours to discharge the teacher's duties. The obligations under paragraph 39 and, so far as relevant, paragraph 40, show that the teacher working normally, though on half term, is not comparable with the teacher whose contractual obligations in that regard do not bite, because she is on maternity leave.

It is submitted for the Respondent that the decision in paragraph 17 of the judgment of the European Court of Justice in Gillespie, that women taking maternity leave provided for by national legislation are in a special position which is not comparable either with that of a man or with that of a woman "actually at work", does not mean actually 'at the work place' but does mean working normally for her employer in terms of the first question posed by the Court of Appeal of Northern Ireland. 'Working normally' is, it is submitted, working in the framework of the contract of employment which includes days and hours of work and duties within the school calendar as a whole. 'Working normally' attracts payment of monthly salary.

In seeking to establish that for short periods during maternity leave pay is payable at full rate the Appellant must be prepared to address what event triggers payment at full rate. Salary is calculable in daily terms, and is for some purpose, by taking one 365th of annual salary. In argument Counsel for the Appellant submitted that the Appellant was entitled to full pay for the ten days of half term. That is a week and a long weekend. "Why then," Counsel for the Respondent asks, "is full pay not triggered by any period when teachers are not normally at the work place, for example, weekends or weekends lengthened by a bank holiday? Furthermore, it was submitted for the Respondent, maternity pay provisions themselves treat periods of school closure as within normal working.

"Conditions of Service for School Teachers in England and Wales", referred to by the Industrial Tribunal and in the Document itself as "The Burgundy Book", contains this passage:

"The teacher's subsequent obligations is to return to her job for at least 13 weeks (including periods of school closure) as a qualifying condition to occupational maternity pay after six weeks absence..."

In the next paragraph but one:

"The 13 week period (or part-time equivalent) starts from the date the teacher returns to work or the date during the school holiday on which the teacher is declared medically fit to be available for work."

Whilst Counsel for the Respondent deployed other submissions in his written and oral argument before us; and, incidentally, pointed to the curious anomaly that would arise from the Appellant's submission that actual pay during maternity leave would depend not on the agreed contractual terms but upon the time of year and state of the school calendar at the time of maternity leave, we do not find it necessary to go into the detail of his argument. The European Court of Justice, specifically considering Gillespie, Article 119, which addresses discrimination in pay, has held that women taking maternity leave provided by national legislation are in a special position. There are no community criteria for determining the amount of maternity pay, provided that it is not so low as to jeopardise the purpose of maternity leave. It is, in our view, implicit that subject to that proviso, arrangements for maternity pay are a matter for member states and such arrangements made in providing for maternity pay that is at a rate less than full pay, does not, for that reason, fall foul of Article 119. We do not think that more, of relevance, can be taken from Gillespie than that.

That the European Court of Justice in Gillespie found that pay rises, agreed or implemented during the period of maternity leave, must be allowed to the extent that the formula applied to calculating rates of maternity pay must be applied to such rises, is an aspect of wider provision that the employee absent on maternity leave is entitled to the benefit of the terms and conditions of employment applicable if she had not been absent. But that is subject to payment not at the normal contractual rate but at a special rate during maternity leave.

We accept the submissions of the Respondent as to the right approach to the decision of the European Court of Justice in Gillespie. We are satisfied that the Industrial Tribunal approached the law in this case in a proper fashion and in the result we dismiss this appeal.