United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS TESS GILL and MS. BETSAN CRIDDLE (of Counsel) Instructed by: Messrs Palmer Wade Solicitors 2nd Floor 1-3 Berry Street London EC1V OAA
For the Respondent	MR A LYNCH QC and MR D OUDKERK (of Counsel) Instructed by: The Department for Work and Pensions Office of The Solicitor New Court 48 Carey Street London WC2A 2LS

SUMMARY

An appeal from the dismissal of their sex discrimination claim by trainee midwives in the NHS, from whom the facility of a bursary was withdrawn during authorised absence from their training for a specified period due to pregnancy and maternity. Described as an important test case in relation to vocational trainees, section 14 of the Sex Discrimination Act and Article 5 of the Equal Treatment Directive, the appellants have the support of the EOC and their professional associations. Appeal allowed.


 


THE HONOURABLE MRS JUSTICE COX

1. INTRODUCTION

This is an appeal by three trainee midwives (the Applicants) against the Decision of a London Central Employment Tribunal, promulgated on 8^th April 2004, that they were not discriminated against on grounds of sex contrary to section 14 of the Sex Discrimination Act 1975. The case raises for the first time the question whether vocational trainees, who are absent from their training for a specified period due to pregnancy and maternity, and for whom the facility of a bursary providing financial support during their training is terminated for the duration of that period, can claim the protection of the Sex Discrimination Act (SDA), interpreted so as to be consistent with the EC Equal Treatment Directive 76/207/EEC (ETD), and succeed in their complaints of unlawful discrimination. The status of these Applicants is of course to be distinguished from that of academic students. Whilst the Applicants are not "workers", for the purposes of domestic and European Legislation, they are vocational trainees who combine academic study at higher education institutes with practical training in the working environment through clinical placements in the community and in NHS hospitals. The evidence in this case was that academic study and practical training amount to approximately 50 per cent each of the course. Completion of the course and the attainment of the qualification permit them then to be registered as qualified midwives and to obtain employment in the NHS.

2. It is common ground, therefore, that these are important test cases for trainee midwives in the National Health Service; and the Applicants have the support of both their professional associations and the Equal Opportunities Commission. The bursary scheme was previously administered by Blackpool, Fylde & Wyre Hospitals NHS Trust which was a respondent to the proceedings below, and now by the NHS Pensions Agency who has become respondent to these proceedings on appeal. The Scheme is operated and funded by the Secretary of State for Health, who was therefore joined to the proceedings. The points of principle arising for consideration are new, even in the well-litigated field of pregnancy and maternity discrimination; and there is little authority as yet, either on the provisions of section 14 of the SDA or, in European law, on the rights of vocational trainees under the ETD. We are therefore grateful both to counsel and indeed to all the legal representatives for their considerable assistance to us in determining the issues in this appeal. We should record for completeness that, since these claims began,
   Shelley Wilkinson has now qualified as a midwife. Clare Fletcher and Tracey Parkes are still in training.
3. THE RELEVANT BACKGROUND

Essentially the complaints are, in the cases of Clare Fletcher and Shelley Wilkinson, that they ceased to be paid bursary instalments during their absence from midwifery training by reason of pregnancy and childbirth; and, in the case of Tracey Parkes, that, by reason of pregnancy and childbirth, she was unable to take an appropriate period of absence from training because the bursary payments would have been terminated. An additional complaint brought by
Ms. Fletcher is that she was required to repay an amount of her bursary, when her entitlement was reassessed, after she had interrupted her attendance on the course because of pregnancy and childbirth. All the claims were resisted although, as is clear from the Tribunal's Decision, the issues were almost entirely legal and there was little factual dispute between the parties.

4. In December 2003 the Tribunal held a preliminary hearing on jurisdiction, in order to determine (a) whether the Applicants were "employees" for the purposes of the domestic sex equality legislation; (b) whether they were "workers" for the purposes of Article 141 of the Treaty of Rome and the Pregnant Workers Directive 92/85/EEC or for the purposes of the Employment Rights Act 1996; and (c) whether Blackpool and/or the Secretary of State provided or made arrangements for the provision of vocational training for the Applicants within section 14 SDA; and, if so, whether the making of bursary payments fell within the definition of providing facilities for such training in that section.
5. In their Decision following that preliminary hearing, promulgated on 9^th February 2004, the Tribunal found that the Applicants were neither "employees" nor "workers" within the meaning of the legislation; but that they were women undergoing vocational training within the meaning of section 14 SDA. They also held that the bursary was a facility for training, that the Secretary of State provided facilities or made arrangements for the provision of facilities in relation to the Applicants' training, and that Blackpool made arrangements for the provision of such facilities. No appeal was brought against that preliminary Decision by either side and the Applicants' claims of unlawful sex discrimination were ordered to be determined on their merits. The claims were therefore heard in March 2004, and it is that substantive Decision which the Applicants now seek to overturn in this appeal. There are nevertheless important findings by the Tribunal in their preliminary Decision, which are relevant to the issues arising in this appeal, and to which we must now refer, either by summarising relevant passages or, where appropriate, including them in full.
6. Until 1989 most nurses and midwives were trained in Schools of Nursing attached to NHS hospitals. The training consisted of both theoretical elements undertaken in the classroom and practical elements undertaken in a clinical environment, usually on the ward of the
   NHS hospital employing a particular midwife. Under these arrangements student nurses and midwives were regarded as part of the NHS workforce. They were employed by the relevant Health Authority and were subject to national terms and conditions. They received wages by reference to the trainee nurse and midwife grade, which included maternity pay, and they were entitled to take maternity leave in just the same way as the qualified nurses and midwives with whom they worked. Trainee nurses and midwives provided approximately 20 per cent of the nursing and midwifery staff employed in hospitals.
7. In September 1989 the Department of Health, responding to an initiative from the United Kingdom Central Council for Nursing, Midwifery and Health Visiting, began to implement a programme known as Project 2000, which aimed to place a greater emphasis on the academic component of training. As a result of this project, nursing and midwifery training is now undertaken in Higher Education Institutes (HEIs), commonly Universities, with practical experience being gained through periods of placement in the wards in NHS hospitals by arrangements between the HEI and local NHS Trusts. Nurses and midwives now undertake a three-year or equivalent course of study leading to a degree or diploma in midwifery or nursing. When these new training arrangements came into effect trainee nurses and midwives coming directly into the profession were no longer given employment contracts by hospitals; and, instead of earning wages, received financial support by means of a bursary. In July 1999 there was a further review of midwifery and nursing training, "Making a Difference: Strengthening the nursing, midwifery and health visiting contribution to health and healthcare" which aimed to increase the level of practical skills within the programme and to strengthen the practice-based element, while retaining the university base of teaching.
8. It was a fundamental aspect of the new regime that trainee nurses and midwives should have supernumerary status and should therefore be additional to the workforce requirements of the clinical setting. In response the numbers of healthcare assistants and other staff were increased to provide the labour which had previously been provided on the wards by the trainees.
9. However, there was no dispute that, when they were working on the wards, trainee midwives were working in the same conditions alongside midwifery colleagues on full shifts, carrying out a wide variety of tasks under the supervision of qualified staff and a number of necessary, ancillary tasks. They were covered by the hospitals' indemnity insurance arrangements and the Tribunal found in their preliminary Decision that the more experienced and able students were likely to be an asset to the hospitals. Their position was to be contrasted with that of qualified nurses who decided to undergo retraining in order to become midwives. They retained their employment status in the NHS during retraining on their midwifery course, with their employment rights preserved, including rights to maternity pay and leave. There is no dispute however that the work they did as trainee midwives on the wards was indistinguishable from that of students taking the midwifery diploma course; and they too were deemed as supernumerary.
10. In their substantive Decision in April 2004 the Tribunal made the following observation in respect of these arrangements at paragraph 113:

"The NHS has a shortage of midwives and other health professionals. Historically, before Project 2000, midwives in training were employees with maternity rights under employment law. Currently, nurses retraining as midwives, working alongside diploma students during clinical placements, still have such rights. It is odd that the result of enhancing the academic rigour of midwife training has been that their maternity rights have gone backwards in recent years. It is uncomfortable that, in the sensitive context of hospital wards caring for mothers and babies, there is now an absence of a protective regime of maternity leave and maternity pay for trainee midwives on the diploma programme, and their babies."

11. People wishing to qualify as midwives apply to universities for admission to midwifery courses, via the Nursing and Midwifery Admissions Service. They are offered places by universities and, on acceptance of their offers, they enter into an agreement with the university of their choice. They are required to complete 4,600 hours of attendance, comprising theoretical study and practical placements. Pre-registration programmes must consist of
    50 per cent theory and 50 per cent practical training, which was accepted to be the appropriate division between the course components before us. European Directives 80/115/EEC and 89/594/EEC set the framework of UK training requirements for midwives, requiring a
    three-year course of practical and theoretical training. The training must include theoretical and technical instruction and practical and clinical training dispensed under appropriate supervision. Registration cannot be achieved until all the requisite competences have been signed off. The hospitals do not have any direct legal or financial relationship with trainee midwives under the new system. They do not select the students that do work placements with them. Students are allocated by the universities to clinical placements. There are no express contracts of employment in existence between hospitals and trainees and the hospitals do not fund or administer payment of any financial support to them.
12. The Bursary Scheme

Under the new training arrangements most nursing and midwifery students receive financial assistance for the courses leading to professional registration by means of NHS bursaries. Students on degree courses receive means tested bursaries and students on diploma courses (these Applicants) receive non-means tested bursaries. The Bursary Scheme was, at the time the Tribunal conducted both the preliminary and substantive hearings, operated by the NHS Student Grants Unit (SGU) which was a sub-unit of the Blackpool, Fylde and Wyre Hospitals NHS Trust. The functions of the SGU have now been transferred to the NHS Pensions Agency. The Tribunal set out the relevant provisions of the scheme at paragraphs 30-36 of their preliminary Decision as follows:

"The Scheme is made pursuant to s.63 of the Health Service and Public Health Act 1968 which empowers the Secretary of State to make payments to persons undergoing training who are contemplating working in the NHS. The Section (as amended) provides:

'Provision of instruction for officers of hospital authorities and other persons employed, or contemplating employment, in certain activities connected with health or welfare.

63(1) The Minister of Health may, either directly or by entering into arrangements with others,

(a) provide, for persons employed or having it in contemplation to be employed as officers or servants of a Health Authority, Special Health Authority, Health Board or Primary Care Trust, such instruction as appears to him conducive to securing their efficiency as such officers or servants;

(b) provide, for persons (other than such as are mentioned in the foregoing paragraph) of such class as may be determined by him who are employed, or have it in contemplation to be employed, in an activity to which this paragraph applies, such instruction as appears to him conducive to the efficient carrying out of that activity; and

(c) provide material and premises necessary for, or in connection with, the provision of any such instruction as aforesaid....

(5) Instruction under this section may be provided on such terms, including terms as to payment of charges, as the Minister of Health thinks fit.

(5A) The Secretary of State may by regulations provide for any functions exercisable by a Health Authority, Special Health Authority or Primary Care Trust under or in relation to arrangements made under subsection (1) above to be exercisable by the Health Authority, Special Health Authority or Primary Care Trust jointly with one or more other relevant health service bodies, and section 126 of the 1977 Act shall apply in relation to regulations made under this subsection as if this subsection were contained in that Act. ...

(6) The Minister of Health may, with the approval of the Treasury,

(a) make grants and pay fees to persons or bodies with whom arrangements under subsection (1) above are made for the provision of instruction under this section...'

31 When Project 2000 was implemented, s63 was identified as the appropriate enabling function for the Secretary of State for Health to set up the NHS Student Grants Unit. Morecambe Bay Health Authority was appointed to deal with the nationwide student grant arrangements. Directions were made under Ss13 and 17 of the National Health Service Act 1977 requiring Morecambe to undertake the training functions under S63 of the 1968``. The most recent version of the Directions, which came into force in October 1997 provides:

'Exercise by Morecambe Bay Health Authority of the Secretary of State's training functions

2 Without prejudice to the exercise by the Authority of the training functions conferred on it by Directions given in the National Health Service (Functions of Health Authorities and Administration Arrangements) Regulations 1996 in relation to the City of Lancaster, and the districts of Barrow-in-Furness and South Lakeland, the Authority shall in addition exercise generally on behalf of the Secretary of State for Health as respects England and on behalf of the Secretary of State for Wales as respects Wales their training functions (being those functions which prior to the coming into force of this direction were carried out by the National Health Services Student Grants Unit) concerned with the calculation of allowances payable under section 63 to persons availing themselves of instruction to which that section applies.

Manner in which the functions are to be exercised

3(1) The Authority shall itself exercise the additional training functions conferred by paragraph 2 above, or shall secure their exercise by another NHS body by means of NHS contracts.

(2) the additional training functions shall be exercised in accordance with the specifications set out in the Schedule to these Directions.

32 Under paragraph 3(2) of the Directions and the Schedule thereto Morecambe is required to operate the student grants arrangements in accordance with the Education (Mandatory Awards) Regulations 2000. Paragraph 2 of the Schedule provides:

'In assessing, paying and reviewing the Bursaries as above, the Authority shall, subject to such exceptions as the Secretary of State may direct, apply the Education (Mandatory Awards) Regulations 2000 as they relate to 'old award holders' as defined by those regulations, and any regulations replacing those regulations.

33 The Schedule to the Directions (Service Specification) reserves to the Secretary of State responsibility for all policy aspects for the Student Grants Unit. The Secretary of State retains responsibility for policy and legislation related issues, dealing with enquiries and complaints about policy and legislation related to the SGU.

34 Morecambe entered into a service level agreement to undertake the operation of the student grant arrangements with a local NHS Trust, Blackpool Victoria Hospital NHS Trust. Blackpool Victoria was dissolved and Blackpool established on 1 April 2002 by SI 2002 No 1243. From 1 April 2002 the Service Level Agreement has been operated by Blackpool. The Service Level Agreement was initially for a period from 1 October 1997 to 31 March 2001. It then continued for further periods of 12 months subject to a review. The Service Level Agreement in effect mirrors the Directions and requires the service to be operated in accordance with the Mandatory Awards Regulations.

35 On 1 April 2002 Morecambe ceased to exist in consequence of NHS reorganisation. In its place, a number of Primary Care Trusts were established to provide primary care arrangements for health care within the geographical area of the former Morecambe. One of the legislative effects of the abolition of Health Authorities was that the Section 63 functions of the Health Authorities were transferred to the PCTs.

36 The SGU is currently a sub-unit of Blackpool. It operates independently and in accordance with the terms of the Service Level Agreement and the Directions. In practice, the day-to-day administration of the SGU remains unchanged after the transfers of Section 63 functions to PCTs on 1 April 2002."

The Tribunal then set out their findings in relation to the practical operation of this scheme:

"37 A diploma student who wishes to apply for a Bursary must send an application form to the SGU. The Bursary is payable provided the student meets the eligibility criteria of being enrolled on a midwifery or nursing course, and being resident in the UK for the purposes of undertaking the course. A diploma student receiving a non-means tested Bursary is not entitled to claim other forms of financial support, such as student loans, access funding and hardship loans and NHS hardship grants. Diploma student midwives in receipt of Bursary are exempted from Council tax.

38 The Bursary comprises tuition fees payable for the year, basic maintenance allowance and also additional allowances if the student is eligible for extra support. The maintenance allowance component is calculated by reference to the academic year running from 1 September to 31 August and is payable to the student in monthly instalments throughout the year. By way of example the level of Bursary awarded to Clare Fletcher for the academic year 2001/2002 was £6,852.00 consisting of a standard £6,232.00 diploma level Bursary for study in London and an Older Student's Allowance of £620.00. A one-off payment of £55 for books was made on enrolment."

13. Paragraph 20(2) of the Scheme provides for Termination as follows:

"The authority may, after consultation with the academic authority and the commissioner, terminate the award if they are satisfied that the student has either –

1. withdrawn, abandoned, or been expelled from the course in respect of which it is held, and the award does not fall to be transferred under paragraph 19; or

2. shown himself by his conduct to be unfitted to hold the award."

There is provision in the Scheme at paragraph 22 for reduced payments to be made in prescribed circumstances, set out at subparagraphs (4) and (5). The award of bursary in prescribed circumstances is then recalculated in accordance with the formula set out at subparagraph (6). These provisions state as follows:

"(4) In respect of any period:

(a) after the termination of an award;

(b) during which a student is excluded from attendance at the course by the academic authority; or

(c) during which a student is absent without leave from his course,

any payment in respect of maintenance shall be reduced as described in sub-paragraph 22(6);

(5) In respect of any other period, being:

(a) one during which a student is absent from his course (other than one of not more than 60 days due to illness);

(b) where an award held in respect of one course is transferred under paragraph 19 to another, one during which the student is not required to attend either course (other than the period of a single vacation); or

(c) one during which the student is detained under an order made by any court,

the authority may, with the approval of the commissioner, reduce any payment in respect of maintenance otherwise due by such amount, not exceeding that mentioned in sub-paragraph 22(6), as having regard to all relevant circumstances they consider appropriate.

(6) The amount referred to in sub-paragraphs 22(4) and (5) is the aggregate of -

(a) the maintenance grant payable for the year under paragraphs 4(1)(a) and (b)(i) multiplied by the number of days for which the period in question lasted divided by the number of days in respect of which the grant is payable for that year; and

(b) such portion of the maintenance grant payable under paragraph 4(1)(b)(ii) as the authority consider appropriate,

and in determining the number of days for which a period lasted, they shall disregard the first 60 days of any period of absence due to illness."

14. The effect of these provisions is this. The bursary may be terminated if a student has withdrawn from the course (Rule 20(2) and, if the bursary is terminated, the bursary payable for the year will be reassessed and reduced (Rule 22(4)). If a student is absent from his or her course with leave (that is any other period to which Rule 22(4) does not apply), a discretion should be exercised as to whether the bursary should be reassessed and reduced and, in addition, the commissioner's approval should be sought for any reduction (Rule 22(5)). The reduction, if any, may not be more than the formula set out in paragraph 22(6), which provides for the bursary to be reassessed as an entitlement to the number of days' bursary which corresponds with the number of days' attendance on the course, and for deduction of the amount of grant attributable to the number of days' leave.
15. The Tribunal found on the evidence that the SGU follows a particular procedure when a student's attendance on the course is discontinued or interrupted for any reason (other than sickness up to 60 days), including maternity. The procedure, which is not to be found in the Scheme, the Directions or the Rules, is that the University will inform the SGU that the student is discontinuing or interrupting their course. The bursary payments then cease. The student's entitlement to the basic maintenance allowance is recalculated at a daily rate and multiplied by the number of days for which the student actually attended the course. The amount of bursary which has been paid to the student in excess of that daily rate then becomes repayable by the student to the SGU. A student will not be entitled to a bursary when attendance on the course has been discontinued or interrupted. If a student later wishes to repeat any part of the course the SGU may make payment of bursary to a student to enable him or her to repeat that part.
16. It was the Respondents' evidence before the Tribunal at the substantive hearing that, notwithstanding the provisions of the Scheme, the invariable practice of the SGU was to treat all absences from the course as if they were withdrawals, in accordance with paragraph 20(2), and to terminate the award of bursary (see paragraph 10 (vi) of the Reasons). The only exception was in respect of those students who were absent by reason of sickness for not more than 60 days, who continued to receive bursary payments under paragraph 22(5). The Scheme expressly provides that such absences are to be disregarded in considering the exercise of discretion to cease paying the bursary; but there was no evidence that the discretion was in fact ever exercised.
17. The Tribunal found (paragraph 10(i) of the substantive Decision) that the Secretary of State had not developed any policy in relation to bursaries and the absence from the course of midwives in training for reasons of pregnancy or maternity. The Department of Health Ministers adopted the provisions of the Education (Mandatory Awards) Regulations, concerning support to students in mainstream higher education, for the midwives in training, without considering the specific issue of whether those trainees should continue to be paid bursary if they interrupted their course. A request from the Applicants for discovery of any policy documents on this matter produced the response that the Secretary of State was not aware of any documents in his possession which related to the practice of discontinuing bursaries during maternity absence, or any documents which evidenced a policy intention related to this practice. The Tribunal observed, at paragraphs 110 and 112 of their substantive Decision, that the Bursary Scheme failed to recognise the possibility of trainee midwives becoming pregnant; and that the Department of Health had failed to give any consideration to the issues that arose in relation to pregnancy in connection with the scheme. Accordingly it is clear that, in the absence of any policy adopted by the Secretary of State as to how trainee midwives' maternity absence should be dealt with, either under the scheme or generally, a practice has developed which is outwith the scheme and which:

a) Treats all maternity absences as though they were withdrawals under
paragraph 20(2);

b) Fails to exercise any discretion as to whether bursary payments should be reduced at all under paragraph 22(5); and

c) Treats all absences from the course (save for 60 days sickness absence) as a reason to cease paying the bursary, regardless of the individual circumstances.

18. The Individual Applicants

Clare Fletcher: King's College

Students undertaking the three-year Diploma of Higher Education in Midwifery Practice are required to enter into two contracts, namely a contract of studentship with King's College and an honorary contract with the Trusts providing clinical placements. As the student progresses on the course, the number of hours devoted to clinical experience increases. The
King's College student handbook makes provision for maternity leave for those students who become pregnant during the course, as follows:

"If you become pregnant during the programme you MUST inform your personal tutor and/or programme leader as soon as the pregnancy is confirmed. You will normally be allowed to continue on the programme unless you request otherwise, or unless there are medical grounds which prevent you from doing so...

An individual plan of training will then be agreed between you and the Head of Midwifery Education. This will take into account your expected delivery date as well as other considerations such as the due dates for submission of course work. If you are sick or absent excessively from the 29^th week onwards, and it is considered that this is pregnancy related, you may be asked to begin maternity leave earlier than planned.

Your plan of training will include the timescale for your maternity leave, and an agreed return date. All students will be required to undergo a health check by Occupational Health to establish fitness for practice before resumption of the programme, but in all cases students will not be permitted to resume practice placements for a minimum of weeks following delivery."

19. As from 1^st September 2001 Clare Fletcher was registered as a student on the Diploma course at King's College. She started the course on 17^th September 2001 and signed her honorary contract on 19^th September 2001. Between 18^th October 2001 and 11^th January 2002 she undertook clinical placements with Lewisham Hospital NHS Trust, working under her honorary contract. On 20^th November 2001 she informed her personal tutor, Jan Bowden, that she was pregnant and that her expected delivery date was 2^nd April 2002. On
    17^th January 2002 Ms. Fletcher had to leave the course because of pregnancy-related sickness and she remained on sick leave until 22^nd March 2002. On 5^th March 2002 she received a letter from Ms. Bowden stating, amongst other things:

"As discussed during our meeting on 5 February 2002, you have been off sick since
17 January 2002 and have forwarded a sick letter from your midwife to this fact. You will remain on sick leave until Friday 22^nd of March 2002 and commence maternity leave on Monday 25^th March 2002. As discussed your bursary will not be paid to you from this date but will recommence on your return to the course.

I have spoken to Pauline Hammett [the Head of Midwifery and Women's Health Studies] who has asked that you should write to her at the beginning of September 2002, identifying your prospective plan to recommence your training. This letter will allow us to inform you of any changes that have been made to the course which could affect your return."

20. At some time in March 2002 King's College filled out a "Notification of Change in Student Circumstances" form, which was sent to the SGU. In this form the college notified the SGU that Ms. Fletcher had "withdrawn" from her course, giving her last date of attendance on the course as 22^nd March 2002. The SGU then recalculated Ms. Fletcher's award. They calculated that she had started her course on 17^th September 2001 and had been in attendance for 187 days to 22^nd March 2002. The daily rate for the basic maintenance allowance portion of her bursary was £17.07 and it was therefore calculated that she was entitled to 187 days times £17.07, namely £3,192.83. Her entitlement to Older Students' Allowance was calculated from the beginning of the academic year at £1.70 per day for 203 days until 22^nd March 2002, amounting to £344. 82. She had a reassessed award for the year of £3,537 as against receipt of £3,997 and was required to repay £459.35.
21. Ms. Fletcher's son, Gabriel, was born on 30^th March 2002 and on 20^th May 2002 the SGU wrote to her requesting repayment of £459.35, being the amount said to have been overpaid to her. Ms. Fletcher appealed against the request for repayment on 3^rd July 2002 and she lodged her two Originating Applications with the Tribunal in August and September 2002. On 6^th January 2003 Ms. Fletcher returned to her course following the period of absence agreed with her tutor. She has been paid a bursary since her return.

22. Tracey Parkes: Bournemouth University

Students undertaking the three-year Advanced Diploma in Midwifery Practice are required to enter into a contract of education and training with Bournemouth University. Once again, as the student progresses on the course, the number of hours devoted to clinical experience increases. No specific provision is made for maternity leave for student midwives, though it appears that midwives are treated as being on "maternity leave" when they are away from the course by reason of pregnancy.

22. In January 2001 Ms. Parkes was offered a place on the Advanced Diploma course and she signed a form confirming her acceptance on 14^th January, commencing the course on
    15^th February 2001. She received a bursary from the SGU. In March 2002 she discovered that she was pregnant, when she had just commenced her second year as a student, and she informed her personal tutor two months later. At this time, she was unaware that no bursary would be payable during absence from the course.
23. In August 2002 Ms. Parkes spoke to the course leader and was advised for the first time that the bursary would only be payable for the 36 months of the course. She was told that if she wanted to continue to receive payment during such time as she was away from the course, she would have to demonstrate her commitment to the SGU by making up clinical hours as she went along. She was presented with three options:
24. ) To continue with the academic part of her course during the maternity period, taking ten weeks off from clinical placement to be made up at the end of the course. The ten-week break, during which she would continue to undertake coursework would be unpaid.
25. ) To continue with the academic part of the course during the maternity period, making up the hours that she was due to lose from clinical work as she went along. Any outstanding hours would have to be made up at the end of the course, for which no bursary would be received.
26. ) "Back-classing" – that is leaving the course and joining the clinical intake six months behind hers, which would mean taking a seven-month break in order to rejoin the course at the same point at which she had left it. That period of time would be unpaid.

Ms. Parkes chose the second option because of her financial circumstances. She was only able to choose an option which would enable her to carry on receiving her bursary during any period of absence. At the end of October 2002 she applied to the Department for Work and Pensions for payment of maternity allowance. She was assessed as not having paid sufficient National Insurance contributions to receive maternity allowance, but as having paid sufficient contributions to receive Incapacity Benefit. She received that benefit in accordance with the statutory scheme at the rate of £54.50 per week for an eight-week period prior to her baby's birth and then for two weeks following the birth.

27. As a second year student carrying out 30 hours of clinical work per week, Ms. Parkes would have 300 hours of clinical work to make up from a ten-week absence. She worked
    six additional night shifts during the summer and an additional ten hours per week in her placements after the summer holiday, completing 88 additional hours. However, she was then advised by her own midwife to cease carrying out additional hours because of the strain being placed upon her in the latter stages of her pregnancy. She therefore ceased to carry out clinical placements when she was approximately eight months pregnant. The Tribunal noted that in this case her bursary continued, in the absence of work for the hospital. On 17^th December 2002 Ms. Parkes' daughter was born and as a result of complications following the birth she became anaemic. In the period following the birth she nevertheless continued to complete her academic work. She completed her second year in February 2003. Although she was due to return to clinical work on 23^rd February, when her daughter was 9 weeks old, she was unable to return, due to health reasons, until 6^th April 2003. At that time she had 332 hours of clinical work to make up. Upon her return to clinical work she then began to work a 47-hour week comprising seven hours of academic study, 30 hours of normal clinical placements and an additional
    ten hours of clinical placements. On 18^th July 2003 Ms. Parkes was signed off sick from her course with a depressive illness. She returned to her training on 15^th September 2003, at which time in order to protect her health she resumed her normal clinical hours. It was estimated that she would still have a further eight weeks of clinical hours to complete when the course finished in February 2004; and she was advised that it would be in the discretion of the SGU whether payment was made to her during that additional period.
28. Shelley Wilkinson: Nottingham University

Nottingham University is recognised by the UKCC for the provision of midwifery training. Its subsidiary company, University of Nottingham Teaching Services Limited, has an agreement with the Trent NHS Workforce Development Federation to undertake to provide a three-year diploma course for the training of midwives. The agreement between the two parties contains a definition of students who "interrupt" their course of training as follows:

"Interrupts means those Students who are currently on temporary leave of absence from a Programme, authorised by the Contractor [being UTNS] (other than by way of suspension by the Contractor) to include by way of example maternity leave, paternity leave or compassionate or other leave offered to students at the reasonable discretion of the Contractor or unexplained failure to attend for a maximum period of twelve weeks"

The University Handbook for midwifery students includes provision for maternity leave, providing:

"Maternity Leave

Students who become pregnant during the course should consult the Personnel Department for advice at the earliest opportunity. Students will be allowed an appropriate break and then rejoin the course at the point at which they left. Bursaries will not be paid during the period of absence."

29. Shelley Wilkinson was registered as a student on the course as from 26^th March 2001 and she was awarded the full basic bursary award. On 26^th September 2002 she informed her university tutor that she was about 12 weeks pregnant and that she wished to take six months away from the course to have her baby, returning in September 2003 to begin her third year,
    six months later than would otherwise have been the case. On 7^th March 2003 her tutor sent a memorandum to certain members of academic and medical staff informing them that
    Ms. Wilkinson was taking a short "interrupt" from the course due to maternity leave. An internal notification form also completed on that day noted that Ms. Wilkinson would be required to achieve the requirements of her course on her return, which could entail completing an unbursaried period of teaching. Further, a "Notification of Change in Student Circumstances" form was filled out for the SGU, stating that she was due to start a period of interruption from training on 9^th March 2003. The tutor added in the comments section of the form "maternity leave – six months interruption in training". On 27^th March 2003 the SGU wrote to Ms. Wilkinson informing her that her award had been recalculated. As at the time when she ceased attending the course, she had been underpaid £111.60, which was repaid to her. Her son Alex was born on 11^th April and, on 15^th September 2003, she returned to the course. She was awarded a bursary for the academic year 2003 to 2004.

28. Section 14 SDA

At paragraphs 109 to 111 of their preliminary Decision the Tribunal referred to the provisions of sections 14, 16 and 20 of the SDA:

"Section 14 SDA

109. Section 14 of the Act, part of the chapter of Part II concerned with 'Discrimination by other bodies', under the Heading "Persons concerned with provision of vocational training", states:

'(1) It is unlawful, in the case of a woman seeking or undergoing training which would help fit her for any employment, for any person who provides, or makes arrangements for the provision of, facilities for such training to discriminate against her-

(a) in the terms on which that person affords her access to any training course or other facilities concerned with such training, or

(b) by refusing or deliberately omitting to afford her such access, or

(c) by terminating her training, or

(d) by subjecting her to any detriment during the course of her training

(2) Subsection (1) does not apply to -

(a) discrimination which is rendered unlawful by section 6(1) or (2) or section 22 or 23, or

(c) discrimination which would be rendered unlawful by any of those provisions but for the operation of any other provision of this Act.'

Section 16 SDA

110. This section, under the heading 'Training Commission etc', provides:

'(1) It is unlawful for the Secretary of State to discriminate in the provision of facilities or services under section 2 of the Employment and Training Act 1973.

(2) This section does not apply in a case where-

(a) section 14 applies, or

(b) the Secretary of State is acting as an employment agency.'

Section 20 SDA

111. Under the heading of 'Special Cases', in Part II, Section 20 now provides in relation to midwives that:

'(1) Until 1st September 1983 section 6(1) does not apply to employment as a midwife.

(2) Until 1st September 1983 section 6(2)(a) does not apply to promotion, transfer or training as a midwife.

(3) Until 1st September 1983 section 14 does not apply to training as a midwife.'"

The Respondents had submitted that any claim against the Secretary of State and Blackpool was justiciable only in the County Court, as a claim under Part III of the Act dealing with discrimination in the provision of goods, facilities or services, and in particular under section 29 thereof. The Tribunal's conclusion at paragraphs 275 to 281 was as follows:

"275. The Tribunal started from the simple proposition that the SDA was to be read in a manner that was consistent with Community law, in order to safeguard Community rights. The Equal Treatment Directive 76/207/EEC has as its purpose equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions. This pointed to the Tribunal giving a broad meaning to 'vocational training' in Part II, not a meaning derived from the particular political history of training arrangements in the UK over the last 30 years. The allied proposition was that such matters, related to access to employment, fell within the exclusive jurisdiction of the industrial court, the Employment Tribunal. The Tribunal also reminded themselves that this broad purpose of outlawing discrimination in access to employment and giving jurisdiction on such matters to the Tribunal was demonstrated by the structure of Part II. Ss 6 to 10 were under the chapter title 'Discrimination by employers'. However ss 11 to 16 were under the chapter title 'Discrimination by other bodies'. The broad ambit of this chapter was for example demonstrated to the Tribunal by s13 SDA on 'Qualifying bodies' and the broad interpretation given to the scope of that section, most recently by the Court of Appeal in Patterson v Legal Services Commission (Times 20 November 2003)

276. The Tribunal drew support for Tribunal jurisdiction from the terms of s20 SDA. That expressly applied s14 to training as a midwife, with effect from September 1983. This militated strongly against the very narrow interpretation of s14 and vocational training argued for by the Respondents, at least in 1983.

277. So for the Tribunal the question became whether s14, which had been expressly applied to midwife training in 1983, did not now apply to that training. The Respondents said that s14 did not apply to any body in these proceedings, presumably on account of the method of delivery of training changing with Project 2000.

278. The Tribunal were not so persuaded. Firstly they were not attracted by the Respondents' late argument that the activities of the Secretary of State and Blackpool were s29 SDA matters, in relation to provision of facilities to a section of the public. Trainee midwives had been categorised by the 1983 amendment as in vocational training within s14, within Part ll. The Hospitals and Universities now accepted they were students within ss 22 to 28 of Part III SDA. The Tribunal did not see the inconsistency suggested by the Respondents in the Applicants' position vis a vis the Hospitals and Universities being justiciable in the County Court while their position vis a vis Blackpool and the Secretary of State was justifiable in the Tribunal. They considered the analogy of a student requiring an authorisation to engage in a particular profession. It would be quite unsurprising for the student to have claims against the qualifying body under s13 SDA, while for other purposes being a student within the ambit of Part III.

279. It seemed unconvincing that the trainee midwives were to be seen 'merely' as members of a section of the public vis a vis Blackpool and the Secretary of State when the statutory language describing the activities being performed by Blackpool and the Secretary of State, and the evidence of Helen Field, were visited and compared with the terms of s16 SDA. S63 Health Service and Public Health Act 1968 contained the language of provision of arrangements, making arrangements for training, providing necessary material and premises and paying grants to those receiving instruction. This equated closely with the wording of s14. The role of the Secretary of State for Health as described in the evidence of Helen Field, making arrangements in relation to the education and training of health professionals, with financial support for those undertaking the courses an integral part of those arrangements. This seemed to the Tribunal most readily categorised as putting in place a system of vocational training for health professionals.

280. Also the Tribunal had the analogy of the wording of s16 and the references therein to s2 Employment and Training Act 1973, which makes broad provisions to make arrangements for training and to make grants and loans to persons who provide facilities or use the facilities made pursuant to those arrangements.

281. The Tribunal recognised that when Project 2000 had been implemented it could have been technically possible for arrangements for the financial support of student midwives to have been made under Education legislation, bringing issues in relation to such financial support arguably within the terms of s22 to 28 regarding Education. But that had not been done. The Bursary Scheme is operated in accordance with the Education (Mandatory Awards) Regulations 2000, but not under those Regulations. The policy decision is to keep that Bursary function apart, under the control of the Secretary of State for Health, as an integral part of the planning and funding of vocational training for health professionals."

30. On the question whether the Bursary Scheme and the arrangements for it should be considered as a provision of facilities or arrangements for provision of facilities for training, the Tribunal concluded at paragraphs 284-5:

"The Tribunal inclined to a broader reading of s14 than that urged upon them by the Respondents. On its wording the section was not concerned with just provision of facilities for training but also arrangements for the provision of facilities for training. The wording of s14(1)(a) again pointed to a broad meaning with the use of the phrase 'facilities concerned with such training'. Their view was that this wording pointed to something broader than the physical provision of say libraries and computers. There was nothing in the section to put such limits on the wording: indeed the broad literal wording pointed in the other direction. Ss16 and 29 with their clear broad interpretation of facilities for the Tribunal supported that view.

285. The Applicants said that ss16 and 29 SDA with their references, direct or indirect, to grants and loans as falling within the term 'facilities' supported a broad interpretation of the phrase in s14. The Respondents said the reverse, that in effect facilities had a different meaning depending on its context. The fact that the phrase clearly encompassed grants and loans in ss16 and 29, because of direct or indirect references in those sections, pointed to it not encompassing grants and loans in s14, because of the absence of direct or indirect reference there. The Tribunal preferred the Applicants' argument on this point. It was unattractive for there to be radically different meanings given to the same phrase in the same Act, the meaning only ascertainable, in the case of s16, by reading the Employment and Training Act 1973, not on a reading of the section itself. An element of casuistry seemed involved in saying that grants for training provided under the Education and Training Act 1973 were facilities but grants for training provided under s63 Health Service and Public Health Act 1968 were not facilities."

31. Finally, on the specific issue whether Blackpool and/or the Secretary of State for Health were providing facilities for training or making arrangements for the provision of facilities or whether the Bursary Scheme was outside the scope of this phrase, they held at
    paragraphs 286-8:

"286. The Tribunal's view was that, applying a broad purposive meaning to s14, the Secretary of State provided facilities or made arrangements for the provision of facilities. The evidence of Helen Fields emphasised that the Department of Health sets policy for the education and training of midwives, including financial arrangements for student support, including bursaries. They implemented Project 2000 in 1989, and instituted the Making a Difference programme in 1999. The NHS Bursary Scheme is set up to pay allowances 'to persons in training having it in contemplation to be employed in the NHS who attend eligible courses, set up between an institution in England and a commissioner under s63 of the Health Services and Public Health Act 1968..." As the evidence of Paul Matthews made clear, the Secretary of State sets the policy regarding Bursary payments. For example he has specified that students may continue to receive a Bursary for a period of up to 60 days of sick leave: making no comparable arrangement in relation to pregnancy and confinement absence. On the facts the Secretary of State makes the arrangements for the provision of training to help fit women for employment as midwives. In setting the policy regarding financial provision for student midwife support, including the Bursary Scheme, he makes arrangements for the provision of facilities for such training.

287.Do Blackpool make arrangements for the provision of facilities for training or provide facilities? Again, giving s14 a broad meaning, consistent with ss16 SDA, then the answer must be that they do. Blackpool operate the Bursary Scheme, a grant arrangement, a facility for training. They withdraw the Bursary on receipt of notification that a student is pregnant, arguably discrimination in the terms on which access is provided to facilities concerned with training within s14(1)(a) or a detriment to which the student is subjected during the course of her training, for the purposes of s14(1)(d).

288.In summary the Tribunal's view was that the question whether the actions of Blackpool and the Secretary of State in relation to the Bursary Scheme were unlawfully discriminatory was appropriately determined under s14 SDA, which falls within the Part II jurisdiction of the Employment Tribunal. A broad purposive meaning should be given to s14 and the phrase 'facilities' therein, consistent with ss16 and 29 rather than a narrow historical view of the section, accompanied by an interpretation of 'facilities' in s14, intentionally inconsistent with and narrower than that in ss16 and 29. On such a broad meaning both the Secretary of State and Blackpool provide or make arrangements for the provision of facilities for training. Whether there has been unlawful discrimination is of course a totally separate matter, for subsequent determination."

32. THE DECISION UNDER APPEAL

At the substantive hearing in March 2004 the Tribunal decided first that, even if the claims were brought outside the primary three-month time limit in section 76(1) SDA, it was just and equitable in all the circumstances to consider the complaints. They so held after the Respondents indicated that they no longer intended to pursue arguments that the complaints were out of time; and after taking into account the important points of principle which arose in test cases relating to the maternity arrangements for health professionals in training. The issues for determination were therefore identified as:

33. ) Whether the Respondents discriminated against the Applicants contrary to section 14 SDA.
34. ) Whether, in the case of Clare Fletcher, the recovery of the bursary due from
    1^st September to 17^th September 2001 was unlawful discrimination.

They summarised the complaints as follows. Clare Fletcher and Shelley Wilkinson contended that they were pregnant when their bursary payments ceased. It was therefore unnecessary for them to point to a male comparator because the withdrawal of bursary, by reason of their absence from the course arising from their pregnancy and maternity, was direct discrimination on the grounds of sex contrary to section 14(1)(a) or (d) SDA, read so as to be consistent with the ETD. Tracey Parkes' case was that, as a result of the practice adopted and applied to her, she was subjected to direct sex discrimination in being denied bursary payments during any period of pregnancy and maternity absence. This too was said to be contrary to
section 14(1)(a) or (d) SDA read together with the ETD.

35. The Tribunal adopted their findings made at the preliminary hearing; and the same evidence was relied on by the parties, together with some further evidence being given by the witness for the Department of Health, Helen Field, and by the Applicants. The Tribunal made some additional relevant findings at paragraph 10. After finding that the Secretary of State had not developed any policy in relation to bursaries and the absence from the course of midwives in training they found that the Rules operated by Blackpool made provision for bursaries to continue for short-term sickness absence periods of up to 60 days in any one year of study, without loss of bursary. Otherwise there were no rules providing expressly for the continuation of bursary during other periods of non-attendance at the course. Any long-term absences, apart from up to 60 days on grounds of sickness absence, were dealt with in the same way. In effect Blackpool were not concerned as to the reason for any such extended absence.
36. There was no consistency in the use of language in describing periods of maternity absence, either in Blackpool's administrative processes or in Department of Health documents, these documents referring variously to maternity absence as an "interruption", a "withdrawal", a "withdrawal albeit temporarily" or as "suspending" training temporarily. The Tribunal criticised as "opaque" and "imprecise" the variable terminology used. Nevertheless, whether the relevant university notified Blackpool that the Applicant was withdrawing from or interrupting the course, the response to the notification form was inevitably to treat the trainee midwife as withdrawing from their course, in accordance with Rule 20(2) of the Bursary Scheme. Further, the invariable exercise of the discretion afforded by that Rule was to terminate the bursary award. The evidence indicated that the "consultation" with the academic authority was limited to receipt of the notification form; and there was no evidence in these cases of consultation with the "commissioner", which meant an NHS Education and Training Consortium, a regional office of the NHS Executive or the National Assembly for Wales.
37. Since we are, in this appeal, determining the points of legal principle which arise, it is unnecessary to record the Tribunal's detailed findings as to the precise calculation of the bursary entitlement in each Applicant's case, which they described with some justification as complex. It is sufficient to refer at this stage to the fact that, in Clare Fletcher's case, they were satisfied on the evidence that the consequence of the repayment demands made of her
    was that she was being asked to pay back ordinary maintenance from the period
    from 1^st to 17^th September 2001, with the result that at the end of her course she would not have the benefit of the 17 days up front payment to cover the last 16 days of her course. In the case of Tracey Parkes the position agreed between the parties was that Blackpool and the Secretary of State were not notified of her pregnancy or of the arrangements which she entered into with her hospital and university in relation to her academic and practical work.
38. In their Schedule of Loss the Applicants Clare Fletcher and Shelley Wilkinson stated that, if they were to be treated no less favourably than the minimum period of continuation of payment of bursary allowed for sickness, namely 60 days, the bursary payment for them would be £1,057 (Fletcher) and £892.80 (Wilkinson). They therefore claimed the equivalent
    of 60 days continuation of bursary payment plus the equivalent of such further payment as the Tribunal considered would have discharged the burden upon the Respondents not to discriminate against them and to be just and equitable, bearing in mind that the Respondents should have taken into account the following factors when deciding how to exercise their discretion to extend the payment beyond 60 days:

i. That the period of absence was in each case agreed with the university;

ii. The need to protect the health and safety of the mother and child;

iii. The fact that Clare Fletcher could not resume her course, having left on
22 March 2002, until 6 January 2003;

iv. The fact that Shelley Wilkinson could not resume her course, having left on
9 March 2003, until 15 September 2003;

v. The fact that 60 days equates only to 8.57 weeks' paid maternity leave.

Attached to the Schedule of Loss was a document setting out in tabular form how the figures claimed would compare with maternity payments which might have been made to the Applicants had they been found to be "workers". In addition all the Applicants claimed compensation for injury to their feelings. The Tribunal found that, due to their findings on the legal issues at the heart of the cases, it was not necessary for them to make formal findings of fact in relation to the evidence they heard from the Applicants in support of these claims. However, they stated that they wished to make it clear that the absence of findings of facts on those matters was not to be taken as:

"In any way ignoring or minimizing the problems the Applicants and their families experienced in dealing with childbirth in the absence of any maternity benefits."

39. The Tribunal then set out at length the applicable legislative provisions and case law and the parties' competing submissions. Having, at paragraph 113, expressed their discomfort at the fact that maternity rights for trainee midwives had "gone backwards in recent years" as a result of enhancing the academic rigour of their training, to which we have already referred above, they prefaced their conclusions on the issues with the following observations at paragraphs 114-115:

"…the Tribunal are in no doubt as to the importance of the common policy concerns underlying the Article 141, the EPD, the ETD and the PWD in relation to the special protected status of pregnant women and those on maternity leave. In practical terms the situation of these Applicants demonstrates very clearly the basis of those concerns. For example the efforts of Tracey Parkes to do extra clinical placements during pregnancy, to avoid going on maternity leave until the latest possible moment, not to stop the academic component of her course at all, and to do extra workings on return to work with a young baby, do not sit well with those policy concerns.

115 However the Tribunal cannot merely approach this case by reference to these underlying policy concerns. They have to consider the very particular situation of these Applicants as students, not workers, not claiming discrimination in their 'working environment' against their Universities or Hospitals, but claiming discrimination in relation to the provision of facilities for vocational training, in connection with the Bursary Scheme, as adopted by the Secretary of State and operated by Blackpool."

40. Before referring to the Tribunal's conclusions we point out that, underpinning a number of the Applicants' criticisms of the conclusions made by the Tribunal in this case, is the observation made by Ms. Gill, appearing on their behalf, that the Tribunal led themselves into error on the basis of a wrong characterisation of their claim as a claim for "maternity pay" or "full pay" whilst on "maternity leave". In analysing the Applicants' claims by reference to the case law on the entitlement of pregnant workers to maternity leave and pay pursuant to European and Domestic legislation, she submits that they lost sight of the central point that these claims were not and could not be for "maternity pay", since the Applicants were not "workers" and were therefore outside the special regime dealing with maternity protection and giving rights to maternity leave and maternity pay to "workers". The Applicants' claim was that they had been discriminated against unlawfully on grounds of sex as pregnant vocational trainees, by having the facility of the bursary payments removed from them during their absences from training, contrary to section 14 of the 1975 Act. Whilst the policy considerations which underpin the legislation protecting pregnant workers, in terms of maternity leave and maternity pay entitlement, apply equally to the legislation which prohibits discrimination on grounds of pregnancy, the Tribunal's reliance on and their application of those particular legislative provisions and cases, dealing with a specific regime which does not apply to these Applicants, led them into error in concluding that there was no unlawful discrimination. This error, she contends, permeated the reasoning throughout their Decision.
41. At paragraphs 116 to 135 the Tribunal set out their conclusions on the issues as follows; and in view of their importance in this appeal we shall include them here in full:

"116. The Tribunal addressed first the assertion that it was less favourable treatment not to continue bursary payments during maternity leave, whether the claim was put ambitiously on the basis of continuation of bursary throughout maternity absence, or on the narrower basis, apparent in the schedule of loss, of 60 days' bursary, the equivalent of the 'sick pay' entitlement under the Scheme. They noted in passing that Clare Fletcher, being already pregnant when she started her course, was in effect on this formulation, claiming maternity pay at the level of full pay, without a service qualification, more than an employee could demand under the UK maternity regime set out in the ERA and Social Security legislation. This underlined for the Tribunal the ambitious nature of the claim.

117. The Tribunal reminded themselves that, on the facts, female students going off on maternity leave were treated in exactly the same way as any other students, male or female, who interrupted their studies. Applying the European definition of discrimination as enunciated in Gillespie:

'16 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:...

Here the Tribunal were looking for discrimination in the sense of applying the same rules to pregnant women interrupting their course as were applied to others when their situations were not comparable: was this discrimination on account of failing to protect their special status as pregnant women, as summarised by Brown at paragraph 17:

'...protecting a woman's biological condition during and after pregnancy and, secondly, ...protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.'?

118. The Tribunal's starting point was that Webb ruled out a comparison between sickness and pregnancy:

'24 ...there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovered very shortly after conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons...'

119. Further they noted that two of the Applicants, Clare Fletcher and Tracey Parkes, had benefited from the maximum 60 day sickness entitlement in relation to pregnancy-related illnesses outside ^-their maternity leave period. Any comparison the Tribunal sought to draw had to focus on the maternity leave period itself.

120. They found it vital to take into account that the Applicants, not being employees or workers, did not fall within the terms of Article 141, the EPD or the PWD. They only fell potentially within the terms of the ETD on account of their involvement in vocational training. The PWD, as the most recent, far-reaching, statement of the pregnancy rights of workers does not, by article 11, require of an employer a continuation of normal pay rates or indeed of contractual rates of pay equivalent to those paid to sick employees. As Boyle stated:

"35 However, although article 11(2)(b) and (3) requires the female worker to receive, during the period of maternity leave referred to in article 8, income at least equivalent to the sickness allowance provided for under national social security legislation in the event of a break in her activities on health grounds, it is not intended to guarantee her any higher income which the employer may have undertaken to pay her, under the employment contract, should she be on sick leave..".

121. Further Boyle makes clear that the obligation under Article 11 PWD is for the individual to receive a level of maternity income from employer and state sources taken together:

"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 [the PWD], it is paid in the form of an allowance, pay or a combination of the two...."

122 .The ETD, in stark contrast, provides only permissively for special treatment in relation to pregnancy and childbirth in Article 2:

'3 This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity...'

123. Further there are clear statements in Gillespie and Boyle that the ETD cannot be used on pay issues:

Gillespie states:

'23 The national court also asks whether Directive (76/207/EEC) applies to the facts of the case.

24 In that regard, it should be borne in mind that the benefit paid during maternity leave constitutes pay and therefore falls within the scope of article 119 of the EEC Treaty and Directive (75/117/EEC). It cannot, therefore, be covered by Directive (76/207/EEC) as well. That Directive, as is clear from its second recital in the preamble, does not apply to pay within the meaning of the above-mentioned provisions.'

Boyle states:

'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 [the EPD]...It therefore cannot also fall within the scope of [the ETD].'

124 .So, on an analysis of the interrelation intended between Article 141, the EPD, the PWD and the ETD, and comments in the case law regarding their interrelation, the Tribunal found very difficult any argument that relies on the ETD to found claims to maternity pay.

125.The Tribunal found that the principles to be derived from the cases supported their view that the ETD could not be used to support a claim to full pay, or sick pay, during maternity leave. Gillespie rejected such a claim by reference to Article 141 and the EPD:

'20 That being so, it follows that at the material time 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...'

126 .The conclusion of the EAT in Banks was that:

'...although any statutory maternity pay received by a woman on maternity leave was 'pay' within the meaning of article 119 of the EC Treaty, and she must not be deprived of all the rights and benefits she would have received had she not required the break, that did not mean that she was entitled to be paid what she would have received had she been at work;...'

127.How far could Brown help the Applicants? The Tribunal felt it could not. Brown was about dismissal of an employee, by reference to the ETD. This case was about continuation of bursary during the absence from their course of students. They were not "dismissed" in the sense that the evidence indicated that their bursary started again, without reapplication, when they were ready to resume their studies. Other cases pointed very firmly to the ETD not being used for pay issues. How then could the Tribunal use Brown to leapfrog all the limitations on the European right to maternity pay described above?

128 .What about Pedersen? Yes Pedersen referred to the ETD in attacking a difference in pay treatment between a sick man and a pregnant woman not yet on maternity leave, on the basis that men and women must enjoy the same working conditions but the Danish legislation permitted a woman who is pregnant to be sent home without her full salary because work could not be provided for her. This seemed to the Tribunal difficult to reconcile with some of the earlier cases on the non applicability of the ETD to pay if the view was taken that the ECJ had reached their conclusion by reference to the ETD alone. However the Tribunal noted that the ECJ judgment seemed to say that the Danish legislation did not fall within the exception for positive treatment of pregnancy and maternity in Article 2(3) of the ETD but then to rely also on the PWD in arriving at their conclusion that the Danish legislation was contrary to European law. So could Pedersen be used to justify comparing a sick man and a pregnant woman on maternity leave where only the ETD and not the PWD was applicable? This would fly in the face of the fundamental principles regarding the invalidity of a comparison of a sick man and a woman on maternity leave. It contradicted Gillespie, Boyle and Banks if it was used to require maintenance of full pay during maternity leave. To rely on Pedersen for this purpose would also entail accepting the proposition that the ETD applies to the working conditions of students who are not workers.

129. In the light of their view that the ETD is not applicable to pay it does not seem imperative for this Tribunal, on the facts of these cases, to answer definitively the question whether the ETD applies to working conditions of students undergoing vocational training, who do no come within the European definition of workers. Counsel admitted that was a Greenfield issue. Tentatively however the Tribunal reached the view that to apply the working conditions obligations of the ETD to students who are not workers is a policy step for the EU, not a matter of broad purposive interpretation of the ETD. The Tribunal were influenced towards this view by the language of the directive, which refers to access to vocational training but not clearly at any point to working conditions within vocational training. Articles 3 and 4 are mirror provisions concerning access to jobs and vocational training. Article 5 regarding working conditions has no mirror provision. The Tribunal were mindful that for the ETD to regulate working conditions in a non-employment context would add very significantly to the scope of the ETD: they would expect clear words to support such a big step.

130. For completeness the Tribunal should add that s14 SDA seems to apply to events in the course of training. It refers to a woman 'undergoing training', it refers to 'terminating her training' in sl4(1)(c) and to subjecting her to any detriment 'during the course of her training' in s14(1)(d). This raises the possibility that s14 goes further than the ETD in relation to protection during vocational training, as well as in relation to access to it. However this possibility does not affect the Tribunal's decision in this case because of their view that non payment during maternity absence does not constitute less favourable treatment.

131. So, finally, the Tribunal considered Hardman. Hardman was very obviously about core working conditions: health and safety risk assessments. This contrasted with this case which was about pay. Hardman was not for the Tribunal a sufficient foundation for the bold leap being demanded of the Tribunal, to require continuation of full pay during maternity leave.

132.The Tribunal's conclusion, after their examination of the European position, was that treating these Applicants in the same way as other students who interrupted their courses, ceasing bursary payments when attendance at their courses ceased, was not less favourable treatment. There was not an obligation in relation to these women to maintain their bursary when they ceased to attend their course on account of their special protected status as pregnant women. It was not valid to reintroduce the concept of comparison of a pregnant woman with a sick man for these students, in reliance on Pedersen: that flew in the face of too many other authorities and legislative provisions.

133.It was not therefore strictly necessary to proceed to a consideration of whether the Applicants had suffered a detriment. In the case of Tracey Parkes the Tribunal were not satisfied that a causal link could not be established between the actions of the Respondents and the detriment suffered by Tracey Parkes as the Respondents were not told at the relevant time of her pregnancy. Her choices in relation to how she dealt with the absence of bursary for maternity leave were taken by reference to options provided to her by her course tutor. Further, as it was not less favourable treatment not to offer maternity pay, Tracey Fletcher was not discriminated against in the terms on which she was afforded access to training or other facilities, contrary to s14(1)(a) SDA.

134.The Tribunal were not persuaded more generally that the fact of treating pregnant midwives interrupting their course to go on maternity leave in the same way as other students interrupting their course by ceasing their bursary when they ceased to attend amounted to a detriment. That was the way the Applicants put their case and it did not persuade the Tribunal. The Tribunal might have been persuaded of detriment if the matter had been pleaded in a different fashion. For example if, as arose in the course of argument, it had been put on the basis of how Clare Fletcher was treated as 'withdrawing' from her course when she went on maternity leave. But that was not the case before this Tribunal

135. The Tribunal's examination of European case law had taken them a long way away from s14 SDA. The Tribunal's conclusions by reference to European law were reinforced by a return to s14. It would be an odd conclusion, if there was not an obligation under sex discrimination law on employers to provide maternity pay at the level of normal pay, and, as indicated by Banks, there was not an obligation on the State, to pay SMP and MA below qualifying thresholds, that the Secretary of State for Health and Blackpool were discriminating unlawfully if their arrangements for the provision of bursary facilities failed to continue bursary during maternity leave. It could not be right that it was within the terms of s14 SDA and the powers of the Tribunal to impose on the Secretary of State and Blackpool obligations to create a maternity pay arrangement that went beyond the maternity pay provisions required of employers and the State."

Finally, at paragraphs 136 to 141 their findings on the claim for repayment from Clare Fletcher were these:

"136. The Tribunal then turned to the reassessment issue. The crucial factual matter for the Tribunal in relation to this aspect of the case was that, as in relation to the stopping of bursary when students ceased to attend their course, here the evidence pointed to a consistent treatment of all interrupts. Clare Fletcher's understandable sense of grievance arose from the anomalies of the reassessment mechanism. It was completely unobvious that, in the first year of study a reassessment took back ordinary maintenance for the days between the beginning of the academic year and the commencement of the course but did not take back special allowances. Blackpool were evasive, both in correspondence and during the proceedings, on the point that if they took back the ordinary maintenance for the first 17 days of the course there was a lack of coverage for the 16/17 last days of the course, in the absence of an exercise of the discretion to pay for overruns.

137. Further, on the facts, the Tribunal were satisfied that the nature of the reassessment was to calculate entitlement. In Shelley Wilkinson's case that exercise had resulted in an extra payment to her when she went on maternity leave. On the facts of Clare Fletcher's case it resulted in an overpayment being identified. This comparison identified that the precise nature of Clare Fletcher's complaint was that the result of a reassessment in her case had been identification of an overpayment, rather than an underpayment or a neutral position. It also posed the question whether the logic of Clare Fletcher's argument was that there should be a reassessment when someone went on maternity leave. However an underpayment should be cured immediately but an overpayment not dealt with until the student returned to their course or failed to do so after some defined period.

138. That comparison also identified that pregnancy and maternity leave per se were not the cause of the detriment that Clare Fletcher complained of. The cause of her sense of grievance was the anomalous, non-transparent operation of the reassessment principles of the Scheme.

139. On this factual analysis the Tribunal again did not find less favourable treatment made out. Boyle pointed clearly to recovery of maternity pay in excess of statutory minima not being unlawful discrimination:

'article 119 of the EC Treaty, article 1 of Directive 75/117/EEC and article 11 of Directive 92/85/EEC did not preclude a clause in an employment contract which made the payment, during the period of maternity leave referred to by article 8 of Directive 92/85/EEC, of pay higher than the statutory payments in respect of maternity leave conditional on the worker's undertaking to return to work after the birth of the child for at least one month, failing which she was required to repay the difference between the amount of the pay received during the period of maternity leave and the amount of those payments.'

140. In the Clare Fletcher case there was a clause in the bursary contract providing for recovery. How could it be unlawful discrimination under the ETD to reassess in accordance with entitlements if it was not unlawful under Article 141, the EPD and the PWD, as indicated by Boyle? The reassessment was again a payment issue. How could the obligation not to seek recovery of pay be higher under the ETD than under Article 141, the EPD and the PWD, when the case law pointed to the ETD not being applicable to pay issues?

141. There was detriment made out on the facts. Clare Fletcher was notified of an obligation to repay bursary, including the 17 days advance payment that would otherwise cover the last 16 days of her course. But the detriment was not caused by pregnancy or maternity leave, by less favourable treatment. It was a result of the anomalous, consistent reassessment process."

42. THE RELEVANT LEGISLATION

We set out here the relevant provisions of the legislation which is under consideration, commencing with the Sex Discrimination Act 1975, as amended. We shall refer to the relevant case law when considering and determining the issues which arise in this appeal.

Sex Discrimination Act 1975

"PART 1 DISCRIMINATION TO WHICH ACT APPLIES

1 Direct and indirect discrimination against women

(1) In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if –

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man,

….

5 Interpretation

….

(3) A comparison of the cases of different sex or marital status under section 1(1) of (2) or 3(1) or a comparison of the cases of persons required for the purposes of section 2A, must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

….

PART II DISCRIMINATION IN THE EMPLOYMENT FIELD …. Discrimination by other bodies ….

14 Persons concerned with provision of vocational training

(1) It is unlawful, in the case of a woman seeking or undergoing training which would help fit her for any employment, for any person who provides, or makes arrangements for the provision of , facilities for such training to discriminate against her-

(a) in the terms on which that person affords her access to any training course or other facilities concerned with such training, or

(b) by refusing or deliberately omitting to afford her such access, or

(c) by terminating her training, or

(d) by subjecting her to any detriment during the course of her training.

(2) Subsection (1) does not apply to –

(a) discrimination which is rendered unlawful by section 6(1) or (2) or section 22
or 23, or

(b) discrimination which would be rendered unlawful by any of those provisions but for the operation of any other provision of this Act."

Article 141, Treaty Establishing the European Community (Treaty of Rome)

"Article 141 (ex Article 119)

1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2. 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.

….

4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers."

Council Directive 75/117/EEC (the Equal Pay Directive)

"Article 1

The principle of equal pay for men and women outlined in Article 119 of the Treaty hereinafter called 'principle of equal pay', means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.

In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.

Article 2

Member States shall introduce into their national legal systems such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principle of equal pay to pursue their claims by judicial process after possible recourse to other competent authorities."

Council Directive 76/207/EEC (the Equal Treatment Directive)

"COUNCIL DIRECTIVE 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 (76/207/EEC)

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

….

Whereas the Council, in its resolution of 21 January 1974 concerning a social action programme, included among the priorities action for the purpose of achieving equality between men and women as regards access to employment and vocational training and promotion and as regards working conditions, including pay;

Whereas, with regard to pay, the Council adopted on 10 February 1975 Directive 75/117/EEC on the approximation of the laws of the Members States relating to the application of the principle of equal pay for men and women;

Whereas Community action to achieve the principle of equal treatment for men and women in respect of access to employment and vocational training and promotion and in respect of other working conditions also appears to be necessary; whereas, equal treatment for male and female workers constitutes one of the objectives of the Community, in so far as the harmonization of living and working conditions while maintaining their improvement are inter alia to be furthered; whereas the Treaty does not confer the necessary specific powers for this purpose;

HAS ADOPTED THIS DIRECTIVE:

Article 1

1. The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as 'the principle of equal treatment.'

….


Article 2

1. For the purposes of the following provisions, 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.

….

3. This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.

….

Article 3

1. Application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy.

….

Article 4

Application of the principle of equal treatment with regard to access to all types and to all levels, of vocational guidance, vocational training, advanced vocational training and retraining, means that Member States shall take all necessary measures to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;

….

Article 5

1. Application 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.

….

Article 6

Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities."

Council Directive 92/85/EEC (the Pregnant Workers Directive)

COUNCIL DIRECTIVE of October 1992 on the introduction of measures to encourage improvements in the safety and health 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

….

THE COUNCIL OF THE EUROPEAN COMMUNITIES

….

Whereas this Directive does not justify any reduction in levels of protection already achieved in individual Member States, the Member States being committed, under the Treaty, to encouraging improvements in conditions in this area and to harmonizing conditions while maintaining the improvements made;

….

Whereas the Commission, in its action programme for the implementation of the Community Charter of the fundamental social rights of workers, has included among its aims the adoption by the Council of a Directive on the protection of pregnant women at work;

….

Whereas pregnant workers, workers who have been recently given birth or who are breastfeeding must be considered a specific risk group in many respects, and measures must be taken with regard to their safety and health;

….

Whereas the vulnerability of pregnant workers, workers who have recently given birth or who are breastfeeding makes it necessary for them to be granted the right to maternity leave of at least 14 continuous weeks, allocated before and/or after confinement, and renders necessary the compulsory nature of maternity leave of at least two weeks, allocated before and/or after confinement;

Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; whereas provision should be made for such dismissal to be prohibited;

Whereas measures for the organization of work concerning the protection of the health of pregnant workers, workers who have recently given birth or workers who are breastfeeding would serve no purpose unless accompanied by the maintenance of rights linked to the employment contract, including maintenance payment and/or entitlement to an adequate allowance;

Whereas, moreover, provision concerning maternity leave would also serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and/or entitlement to an adequate allowance;

Whereas the concept of an adequate allowance in the case of maternity leave must be regarded as a technical point of reference with a view to fixing the minimum level of protection and should in no circumstances be interpreted as suggesting an analogy between pregnancy and illness,

….

HAS ADOPTED THIS DIRECTIVE-

SECTION I PURPOSE AND DEFINITIONS

Article 1

Purpose

1. The purpose of this Directive, which is the tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC, is to implement measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding.

….

Article 2

Definitions

For the purposes of this Directive-

(a) pregnant worker shall mean a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice;

(b) worker who has recently given birth shall mean a worker who has recently given birth within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice;

(c) worker who is breastfeeding shall mean a worker who is breastfeeding within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice.

SECTION II GENERAL PROVISIONS

….

Article 8

Maternity leave

1. Member States shall take the necessary measures to ensure that workers within the meaning of Article 2 are entitled to a continuous period of maternity leave of at least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice.

2. The maternity leave stipulated in paragraph 1 must include compulsory maternity leave of at least two weeks allocated before and/or after confinement in accordance with national legislation and/or practice.

….

Article 10

Prohibition of dismissal

In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that-

1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8(1) save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;

2. if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;

3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.

Article 11

Employment rights

In order to guarantee workers within the meaning of Article 2 the exercise of their health and safety protection rights as recognized in this Article, it shall be provided that-

1. in the cases referred to in Articles 5, 6 and 7, the employment rights relating to the employment contract, including the maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2, must be ensured in accordance with national legislation and/or national practice;

2. in the case referred to in Article 8, the following must be ensured-

(a) the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below;

(b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning Article 2;

3. the allowance referred to in point 2 (b) 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;

4. Member States may make entitlement to pay or the allowance referred to in points 1 and 2(b) conditional upon the worker concerned fulfilling the conditions of eligibility for such benefits laid down under national legislation.

These conditions may under no circumstances provide for periods of previous employment in excess of 12 months immediately prior to the presumed date of confinement."

43. It is well established that the Equal Pay Act 1970 was the domestic implementation of the European equal pay legislation (Article 141 and the Equal Pay Directive) and that the
    Sex Discrimination Act 1975 implemented the requirements of the Equal Treatment Directive in Part II of the Act, with which this case is concerned. The provisions of the Pregnant Workers' Directive have been implemented domestically by the Employment Rights Act 1996, sections 71-75 as substituted by the Employment Relations Act 1999; by the Management of Health and Safety at Work Regulations 1999, Regulations 16-18; and by the Social Security Contributions and Benefits Act 1992 and Regulations made thereunder. Having regard to these European legislative provisions, the Applicants having been found not to be "workers", the result is that the bursary paid to them is therefore clearly not "pay" within Article 141 and the Equal Pay Directive, "pay" having the distinct meaning given to it in paragraph 2 of Article 141, to which the European Court of Justice is referring in all those cases which concern pay. The bursary is, as the Tribunal found, a facility within section 14 of the SDA.
44. The Equal Treatment Directive arose from the Council's recognition that Community action was necessary to achieve the principle of equal treatment for men and women in relation to other areas of work, in addition to pay, including access to work and working conditions; and one of the questions arising in this appeal is whether the principle of equal treatment in relation to working conditions in Article 5, on which the Applicants rely, extends to vocational trainees, the Respondents contending that it does not.
45. It is also clear that the provisions of the Pregnant Workers' Directive do not apply to these Applicants, who are not workers. That Directive, however, forms part of the general protective regime for working women who are pregnant, or who have given birth. The Applicants therefore rely on the policy imperatives set out in the Preamble to the Directive, which recognised the special vulnerability of working women who become pregnant, and which are common both to that Directive and the Equal Treatment Directive. They submit that these must inform the interpretation of section 14 of the Sex Discrimination Act and so afford to these Applicants protection against unlawful sex discrimination. The Respondents, on the other hand, rely on the 92/85 Directive and on the provisions of Article 11, dealing with employment rights, in particular and on the limitations placed on the conditions of eligibility for maternity payment or allowance, as being relevant to the claims of these Applicants. Indeed the Respondents rely generally on the legislation governing maternity pay and benefits and on the cases which address maternity pay, as dealing with the analogous situation of women workers who become pregnant and take maternity leave, in order to submit that the claims of these Applicants must fail in law; and they contend that the Tribunal rightly rejected the "false analysis" of the claims advanced by the Applicants.
46. SUBMISSIONS

We consider first the submissions relating to the first and main issue identified by the Tribunal, namely whether the Respondents discriminated against the Applicants on grounds of sex contrary to section 14 of the SDA.

The Applicants' Analysis and Submissions

Ms. Gill places great reliance on the Tribunal's findings at the preliminary hearing, that these Applicants were women who were undergoing vocational training within section 14 SDA; that payment of the bursary for the duration of their course was a facility for such training; and that the Respondents were providing or making arrangements for the provision of that facility. Pursuant to the Scheme termination of the bursary was permissible only on withdrawal from the course. Neither Ms. Fletcher nor Ms. Wilkinson had withdrawn from their course. Each was absent for a specified period due to pregnancy and maternity, their absences being authorised by their respective universities. Termination of the bursary subjected both of them to serious detriment since it meant that they were without financial assistance at a time when such assistance was most needed by them. In Tracey Parkes' case the detriment was that, in order to continue to receive the bursary, she had to agree to an arrangement with her course tutor, whereby she had to make up clinical placement hours prior to her pregnancy related absence when in an advanced state of pregnancy; and on her return to the course soon after the birth. The Tribunal, whilst making no formal findings on injury to feelings, nevertheless recognised the problems that they all faced in dealing with childbirth when absent from the course without any financial support. The Tribunal erred in finding that there was no detriment in this case.

47. Given that section 14 of the SDA was engaged, Ms. Gill submits that the answer to the first issue to be determined was relatively straightforward, and was based on well-established principles of sex discrimination law at both domestic and European levels. The Respondents were under a duty not to treat the Applicants less favourably on grounds of pregnancy or maternity. But for their pregnancies they would not have needed to be absent from their courses and their bursary payments would have continued. In stopping the bursary payments, in accordance with their invariable practice of terminating bursaries on absences from the course, the Respondents treated the Applicants less favourably on grounds of pregnancy/maternity and therefore discriminated against them unlawfully on grounds of sex. The treatment had direct effect in the cases of Ms. Fletcher and Ms. Wilkinson because their bursary payments were terminated. In Ms. Parkes' case the practice caused her to enter into an arrangement, which was considerably to her detriment, in order to avoid the termination of her bursary. Since the reason why Ms. Fletcher and Ms. Wilkinson were absent, and the reason why Ms. Parkes entered into the arrangement she did, was pregnancy and maternity, the Applicants do not need to rely on a male comparator in order to succeed in establishing sex discrimination; and the Tribunal did not find to the contrary. It is impermissible to defend the withdrawal of a facility on grounds of pregnancy and maternity, and the consequent detriment caused, by relying on the same treatment of non-pregnant comparators. If the effective cause of the treatment complained of is pregnancy or maternity that is sex discrimination. The fact that the treatment occurred when the pregnancy made the Applicants unavailable to attend the course for a period of time does not prevent it being less favourable treatment on grounds of pregnancy. On a straightforward application of sections 1 and 14, construed consistently with the Equal Treatment Directive, the Respondents treated the Applicants less favourably than would have been the case were it not for their pregnancy. The Tribunal therefore erred in failing to apply the law correctly. The claims, in addition, were well within the scope of the Equal Treatment Directive.
48. On this analysis it is unnecessary for the Applicants to compare themselves with trainees who are unable to attend the course because of sickness and who are more favourably treated under the Scheme. Nevertheless, the prohibition in the case law on such a comparison, when used by an employer as a defence to a complaint of sex discrimination, does not prevent these Applicants from relying on more favourable treatment of sick trainees, in order to demonstrate the less favourable treatment of them when pregnant, in relation to continued payment of the bursary during absence. The Applicants, as vocational trainees and not workers, are outwith the protective legislative regime, which ensures rights to maternity leave and to maternity pay or allowance in order to protect working women. They are, however, still protected by the discrimination legislation, in this case the Equal Treatment Directive and section 14, which prohibits discrimination against vocational trainees on grounds of pregnancy; and they can, if it were necessary, compare themselves with more favourable treatment of trainees who are absent from the course by reason of sickness.
49. The minimum sum claimed by the Applicants is the equivalent of the 60 days allowed under the terms of the Scheme for trainee midwives who were on sick leave. However, the Scheme provides for the exercise of discretion after this period. The Respondents should therefore have exercised their discretion so as to ensure that the Applicants were not discriminated against on grounds of pregnancy and maternity; and so as to ensure that they continued to receive the bursary payments for an appropriate period of absence required for pregnancy and maternity. In that respect the period of 26 weeks currently provided for by national legislation, as the period during which employees receive statutory maternity pay/maternity allowance is a reliable indication of the minimum period which is acceptable, having regard to the social policy considerations underpinning the protection of pregnant workers and therefore of pregnant vocational trainees. Whilst this appeal therefore raises novel issues Ms. Gill submits that the Applicants' claims were well founded, on well-established principles of sex discrimination law, and the appeal should therefore succeed.

47. The Respondents' Analysis and Submissions

Mr. Lynch QC's submissions had as their foundation what he referred to as two central propositions, namely (i) that the Tribunal were clearly correct in finding, on the evidence in this case, that the Applicants were not treated less favourably than other students who were absent from the course for whatever reason; and that there was therefore no discrimination; and
(ii) as the Tribunal found in paragraph 135, section 14 of the SDA simply could not bear the burden of the claims being advanced in reliance upon its terms, which required the Tribunal to impose upon the Respondents obligations to create a maternity pay arrangement that went beyond the maternity pay provisions required of employers and the State.

50. In support of these propositions he submitted essentially as follows. As a matter of law it is a well-established principle that it is not unlawful sex discrimination for an employee, who ceases work in order to take maternity leave, not to receive her salary during that period. She ceases to qualify for receipt of salary because she is not providing the services for which she is paid. ECJ case law establishes that you cannot equate a woman not at work with a man or woman at work; but it was clear long before the ECJ decisions that that principle applied domestically. The principle demonstrates that the type of "but for" argument underpinning the Applicants' claims is without foundation. But for her pregnancy a woman on maternity leave would be at work and receiving her salary; but case law establishes that there is no sex discrimination in the employer not paying her salary.
51. Exactly the same principle applies to these Applicants and their claim for continued bursary payments. The system in place was that any student who ceased to participate in his or her course, save for cases of short-term sickness, ceased to qualify for bursary payments during that interruption, whatever the cause. It is not therefore sex discrimination not to pay the Applicants when they are absent for reasons of pregnancy and maternity, because they are not actively participating in their courses, just as working women on maternity leave are not at work and are therefore not entitled to receive their full salary. The Tribunal were correct to find that non-payment of the bursary during maternity absence was not discrimination. If the Applicants had been singled out for adverse treatment when pregnant, in terms of payment of the bursary, that would naturally be very different and would amount to sex discrimination. The clear finding of this Tribunal, however, was the very opposite. There was no singling out of these students, absent on maternity leave, in relation to payment of the bursary. Further, case law shows that women on maternity leave cannot compare themselves with sick men in order to show that they have been treated less favourably in terms of benefits.
52. The fact that a quite separate, statutory apparatus or code exists, which means that workers who meet the necessary qualifications are entitled to maternity leave and maternity pay for a specified and limited period, does not affect this fundamental principle. The maternity pay provided under this code is completely different in nature to salary, and is often significantly less than the salary which would apply if the employee was working. There is, of course, no equivalent of maternity pay for students or trainees and there can be no breach of any obligation in that respect. Parliament may decide to introduce such a scheme as a matter of social policy, after extensive consultation and debate, but section 14 does not permit these claims to succeed. Nor does the Equal Treatment Directive assist the Applicants. Firstly, the payment of the bursary is not a "working condition" within Article 5. Secondly, even if it is, the Directive does not outlaw discrimination in working conditions for vocational trainees, but restricts protection for them to access to such training only.
53. The Applicants' claims go well beyond a claim for limited maternity pay for a restricted number of midwives. If they were right, any other trainee would be entitled to continued payment of their full bursary for the whole time they were absent due to maternity, without the necessity of any qualifying period of service or attendance. This shows how bold and remarkable the Applicants' claims are. Students would be better placed than workers. The Tribunal were therefore wholly correct to conclude as they did and to find no sex discrimination in this case. They did not mislead themselves by referring to "pay" or "maternity pay" in their Reasons, but applied the case law correctly and clearly understood the Applicants' claims. The analogy with the maternity leave and pay cases is helpful in identifying the flaws in the Applicants' case. The Tribunal were also correct to find that there was no detriment because no causal link was established between the actions of the Respondents and the effect upon the Applicants. In any event, having found correctly that the Applicants were not less favourably treated, it was unnecessary for the Tribunal to go on to consider detriment. The Tribunal's Decision is therefore correctly and carefully reasoned and the appeal is unsustainable.
54. OUR CONCLUSIONS

The starting point in this appeal, as it seems to us, is the Tribunal's unchallenged finding that section 14 SDA applies to events in the course of training. The section therefore extends protection against discrimination to a woman who is undergoing vocational training, prohibiting both the discriminatory termination of her training and discrimination in subjecting her to any detriment during the course of her training. Since it is also accepted that the bursary is a facility for such training and that its provision, or arrangements for its provision by the Respondents, fall within section 14(1), the issue at the heart of this case is therefore whether, by terminating the facility of the bursary on absence from the course due to pregnancy and maternity, the Respondents treated the Applicants less favourably on the grounds of their sex. The Tribunal considered it possible that the protection afforded by the terms of section 14 goes further than that afforded by the Equal Treatment Directive; and, in view of the reliance placed on the Directive by the Applicants, we shall determine first the issues arising in relation to the scope and content of the ETD.

55. The Equal Treatment Directive

The opening sentence in paragraph 129 of their Decision indicates that the Tribunal were only expressing a tentative view that the ETD did not apply to working conditions of vocational trainees because, in view of their finding that "the ETD is not applicable to pay" it was unnecessary for them to decide the matter. Mr. Lynch submitted that, although referring there to "pay", the Tribunal were meaning no more than financial provision in the form of bursary payments made to the Applicants, and that they did not mislead themselves. However, the references to the ETD and pay in their Reasons provided a clear example to us of the
mis-characterisation of the Applicants' claims, to which Ms. Gill referred. Having stated, at paragraph 120, that the Applicants fell "potentially within the terms of the ETD on account of their involvement in vocational training", they then refer at paragraph 123 to the clear statements in ECJ case law that "the ETD cannot be used on pay issues". At
paragraphs 124 and 125, having analysed the relationship between Article 141, the EPD, the PWD and the ETD, they stated that they found "very difficult any argument that relies on the ETD to found claims to maternity pay"; and that the cases "supported their view that the ETD could not be used to support a claim to full pay, or sick pay, during maternity leave". They repeated this in paragraph 128, describing this case as a case "about pay" in paragraph 131; and they gave this as their reason for not needing to decide the question relating to the scope of the ETD.

56. The Applicants were not, however, relying on the ETD to found claims to maternity pay or full pay; and their reasoning in this respect suggests to us that the Tribunal lost sight of both the Applicants' central complaint of sex discrimination and their previous finding that the bursary was a facility for training within section 14. It was not in dispute that "pay", for the purposes of Article 141 or the PWD, would not fall within the ETD. The issue was whether the bursary, as a facility for training, was a working condition within the Directive. There is a fundamental difference between (a) having regard, by way of analogy, to the legislation and case law dealing with maternity entitlement for workers, in order to expose alleged flaws in the Applicants' claims; and (b) mis-characterising those claims as claims for maternity pay, which are governed by a protective regime, to which these Applicants did not have access and to which different considerations apply. This case was not about pay and this error, in our view, led the Tribunal into further error in determining the claims, as will become clear later on in our conclusions.
57. Mr. Lynch makes two points in relation to the scope of the Directive. He submits first that, if the claims fall within the ETD at all, the bursary payment can only be accommodated under Article 5, as a working condition; and that a bursary paid to assist people in training cannot fall within the phrase "working conditions". He points out that there is no ECJ case which would support such a proposition; and that, if it had been intended to include such a facility, it would have been included expressly, or dealt with in a separate, educational Directive dealing with equal treatment for students in the workplace.
58. We reject this submission unhesitatingly. The Directive, like so many EU Instruments, is broadly drafted and is to be broadly interpreted, having regard to its central purpose of ensuring equal treatment for men and women as regards their working conditions. The phrase, which is not further defined, is sufficiently broad, in our judgment, to include a facility of the kind being provided in this case, to assist men and women to carry out their vocational training, the Directive expressly applying to such training. The single word "pay" in Article 141 has been found to include such benefits as, for example, pensions, statutory sick pay and unfair dismissal compensation, although none of these appears in the words of the Article itself. Whilst we accept that, perhaps surprisingly, no case has yet been decided in Luxemburg where this point has arisen, we are entirely satisfied that the facility, in the form of the bursary payment to vocational trainees in the workplace throughout their training, is a working condition within the meaning of Article 5.
59. Mr. Lynch's second submission is that the Tribunal's tentative view expressed in paragraph 129 is right; and that the language of the Directive refers only to equal treatment in access to vocational training, but not to equal treatment in working conditions for vocational trainees. He submits that Articles 3 and 4 show that the principle of equal treatment is applied expressly with regard to access to all types of vocational training. In Article 5, however, the principle is referred to only in relation to working conditions; and vocational training is not mentioned. This indicates, he submits, that it was intended deliberately to exclude from its scope, in relation to working conditions for workers, social policy issues concerning the training and education of young people in the workplace; and to leave the matter to be dealt with in educational legislation for students. Working conditions apply therefore only to workers.
60. This submission, too, we find unpersuasive. It led the Tribunal into error, in our view, in stating as they do at paragraph 129 that "for the ETD to regulate working conditions in a non-employment context would add very significantly to the scope of the ETD" and that clear words would be expected to "support such a big step". Working conditions for vocational trainees like these Applicants, regularly carrying out work on the hospital wards alongside qualified colleagues for half of their training, cannot legitimately be said to raise issues in a "non-employment context". As Mr. Lynch accepted, vocational training encompasses a wide range of activities and some trainees might in fact be workers. It is in our judgment inconceivable that the principle of equal treatment in the Directive was intended to apply to vocational trainees, in relation to access to their posts, but not to working conditions in their posts once they are occupying them. Mr. Lynch was unable to identify any other
    EU legislation, which would presently protect them. In relation to pregnancy, if he were right, this would have the somewhat startling consequence that pregnant workers were intended to be protected throughout employment, including recruitment, working conditions and dismissal, whilst pregnant women undergoing vocational training were to be left without any protection once it had been ensured that they had equal access to that training. Ms. Gill also provided the telling example of a woman who could complain of unequal treatment if a vocational course provider refused to allow her onto a course to become a plumber because of her gender. If
    Mr. Lynch's submissions were correct such a woman who, once in post, was persistently given the worst jobs to carry out because she was a woman and the provider hoped she would leave, would have no complaint at all under the Directive. The "big step" in our judgment would be to interpret the Directive in such a way as to restrict the protection of vocational trainees in the workplace in this way. We would expect clear words disclosing such an entirely different policy in relation to vocational trainees undergoing training in the workplace, if there was one. A further oddity, assuming the arguments about sex discrimination in this case to be correct, would be that the failure to make bursary payments "up front", without which a woman could not even take up her place on a training course, would fall within Article 4 as relating to access to vocational training. Yet, where bursary payments are withdrawn after the woman is already on the course, if Mr. Lynch were correct, there could be no complaint of a breach of the equal treatment principle under Article 5.
61. We agree with Ms. Gill that there is nothing in Article 5 which requires such an interpretation; and it would be very surprising if it was intended that such was the case. The Preamble, in referring to the resolution of 21 January 1974, does not suggest that vocational trainees are to be excluded from equal treatment as regards their working conditions.
62. Some further support for this conclusion is to be found in the amended
    Equal Treatment Directive, arising from the European Parliament and Council Directive 2002/73, due to come into force on 5^th October 2005. Articles 4 and 5 of the present Directive are repealed and all matters are now dealt with in a new Article 3(1) as follows:

"Article 3

1. Application of the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds of sex in the public or private sectors, including public bodies, in relation to-

(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;

(c) employment and working conditions, including dismissals, as well as pay as provided for in Directive 75/117/EEC;

(d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations."

Further, by Article 2(5), Member States are required to encourage employers and all those responsible for access to vocational training to take measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment at the workplace. There is no suggestion in the Preamble that this Directive has extended the protection previously unavailable for vocational trainees, as in our view there would be if such protection was a major step of the kind that Mr. Lynch suggests. We find that the facility of the bursary to these Applicants is a working condition within Article 5, the domestic implementation of which is section 14 of the SDA.

63. Sex Discrimination

Mr. Lynch submits, correctly, that as a matter of law a woman worker who ceases to work in order to take maternity leave cannot complain of unlawful sex discrimination when she no longer receives her full salary during that period. She is, in these circumstances, not to be compared with a man or woman who is still at work and providing services to the employer. We agree. We part company with Mr. Lynch, however, when he submits that that principle, which he describes as long-standing, fatally undermines the Applicants' claims of sex discrimination in the present case; and that the principle applies in exactly the same way to their claims for continued bursary payments during maternity absence. In support of this submission we were taken by Mr. Lynch on an interesting journey through the historical development of women employees' rights to maternity leave and maternity pay in domestic legislation, commencing with the Employment Protection Act 1975 and through to the current provision in the Employment Rights Act 1996, as amended.

64. Missing from this journey, however, was the simultaneous evolution of the law relating to discrimination on grounds of pregnancy and maternity which, as a result of the social policy considerations underpinning European sex equality legislation, has transformed domestic sex discrimination law and which continues to develop as different situations arise for consideration. Whilst the rights to maternity leave and pay were enshrined in employment protection legislation, the right not to be discriminated against on grounds of pregnancy was initially not regarded as available to women under the SDA because of the impossibility of the required comparison with a male comparator and the view that:

"When she is pregnant a woman is no longer just a woman; she is a woman with child and there is no masculine equivalent."

(Turley v Allders Stores Limited [1980] ICR 66 EAT)

In the light of Mr. Lynch's submissions we need to refer to the effects of that evolution in order to determine whether, as he contends, the Tribunal were right to conclude that there was no discrimination in this case. We will summarise the main points before considering the relevant authorities.

65. Following the initial decision in Turley, that a pregnant woman could not complain about direct sex discrimination because there could be no male comparator in comparable circumstances, the Courts began to examine possible comparisons with men who were absent from work through sickness, the absence from work of women who were pregnant or after childbirth often being the cause of the detrimental treatment complained of, for example, dismissal. As such cases progressed through the domestic Courts, the ECJ, giving a broad interpretation to the ETD, held that pregnancy and maternity discrimination in the workplace can effect only women and therefore constitutes direct discrimination on the grounds of sex, without the need for a male comparator. In doing so they were giving effect to European social policy considerations aimed at protecting women and preventing them being disadvantaged during their working lives, in particular as a result of pregnancy and maternity. Therefore, in 1995 the House of Lords in Webb v EMO Air Cargo Limited (no.2) [1995] ICR 1021, held that the SDA was to be interpreted consistently with the ETD so that less favourable treatment on grounds of pregnancy constituted direct sex discrimination; and that it is unnecessary for the woman to compare her treatment with that of a sick man or indeed with any man in order for her to succeed in her claim.
66. Discrimination in EU law, when considered in the context of sex equality, is defined as meaning either that different rules are applied to men and women in comparable situations, or that the same rule is applied to men and women who are in different situations. Mr. Lynch referred to them as the "two limbs of EU discrimination", as referred to by the ECJ in Gillespie and others v Northern Health and Social Services Board and others [1996] ICR 498
    at 513:

"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 Finanzamt Köln-Altstadt –v- Schumacker (Case C-279/93) [1996] QB 28."

As applied to pregnancy and maternity cases, the second limb of this definition means that treating pregnant women workers or women on maternity leave in the same way as other employees during the "protected period" (that is the start of pregnancy through to the end of maternity leave), in circumstances in which they are disadvantaged because of their pregnancy or maternity, is applying the same treatment to different situations and is therefore discrimination. In this way, the law aims to ensure substantive equality for working women, who would otherwise be disadvantaged by their pregnancy.

67. This principle has been developed most fully by the ECJ in cases dealing with the refusal of employment (Dekker v Stichting [1992] ICR 325); or dismissal (Webb v EMO Air Cargo [1994] ICR 770: Brown v Rentokil Ltd [1998] ICR 790. But it has, more recently, been applied to treatment relating to other conditions of employment, including the failure to carry out a performance assessment (CNAVTS v Thibault [1998] IRLR 399): and sending a pregnant woman home without paying her full salary when her employer could not find work for her, but when she was not unfit for work (Hoj Pedersen v Kvickly Skive [1999] IRLR 55). These cases establish that no male comparator is required in order to demonstrate sex discrimination. If the reason for the treatment is pregnancy then the detriment resulting, whatever it is, is unlawful sex discrimination even though other employees in the same circumstances are or would be treated in the same way. The same rule is being applied to different situations and is therefore discriminatory.
68. The policies underpinning this development of the law, and their relationship with the further protective measures provided in the Pregnant Workers' Directive relating to maternity leave and maternity pay, can be understood from the following extracts from the
    ECJ judgments and/or from the opinions of the Advocate-General where the ECJ followed and applied them.
69. Webb v EMO Air Cargo UK Ltd [1994] ICR 770

"VIII. The view that a refusal to appoint and/or a decision to dismiss on the ground of pregnancy can relate only to women, thus constituting direct discrimination on grounds of sex, obviously implies that substantive equality between men and women as regards employment precludes any consideration, either when taking up employment or during the employment relationship, of a factor which, by definition, only affects women. It follows, therefore, from the reasoning underlying the judgments in the Dekker and Handels-og Kontorfunktionaerernes cases - and how could it be otherwise - that the Directive must be construed so as to achieve substantive equality, and not mere formal equality which would constitute the very denial of the concept of equality.

Consequently, the dismissal of a female employee for the sole reason that she is pregnant is contrary to article 5(1) of Directive (76/207/E.E.C.), inasmuch as it constitutes - at least in principle - direct discrimination on grounds of sex. From this perspective, article 10 of Directive (92/85/E.E.C.), which prohibits the dismissal of female workers during the period from the beginning of their pregnancy to the end of maternity leave, save in exceptional cases not connected with their condition, merely confirms the interpretation of article 5(1) set out here.

IX. However, the national court points out that in the present case, unlike in the Dekker case, the unequal treatment is not directly based on the female employee's pregnancy but is the result of her inability to carry out, during a particular period, the task for which she had specifically been engaged. In other words, the applicant was not dismissed because of her pregnancy but because her condition would have prevented her from working during the period in which she should have replaced Mrs. Stewart.

It is, indeed, difficult to separate and to distinguish pregnancy from inability to work for a specific length of time which coincides moreover with the duration of maternity leave. In such cases, absence from work is in fact determined by the pregnancy, that is to say, by a condition which only affects women. While it may be true that the woman in question was engaged for the purpose of replacing for a short time another employee during the latter's maternity leave, the fact remains that she was engaged on the basis of a contract for an indefinite period and therefore her inability to carry out the task for which she was engaged affects only a limited period in relation to the total length of the contract.

….

XI. …. it scarcely needs reiterating that, as expressly stated by the court in Dekker v. Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus (Case 177/88) [1992] ICR 325, 329, para. 12, discrimination cannot be justified by the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her pregnancy. It follows that the dismissal of the employee in question owing to the fact that, because of her pregnancy, she would not have been able to fulfil one of the express or implied terms of the relevant contract - an inability which is, however, temporary in relation to the duration of the contract - must therefore be considered incompatible with the principle of equal treatment, as laid down in Directive (76/207/E.E.C.).

From that point of view it is of no significance whatever, even though the national court lays emphasis on it in the question submitted, that the employer would not have recruited the person in question if he had been aware of her pregnancy. In that connection, suffice it to say that the dismissal cannot in any case be considered lawful when the applicant herself, as the order for reference reveals clearly enough, was not aware of her condition. (In my view, moreover, whether or not the parties are aware of the pregnancy at the time they enter into an employment relationship is, for the purposes of a valid employment relationship and a fortiori of a possible dismissal, actually irrelevant save in exceptional cases to be assessed individually: see point 12 of my opinion in the Habermann-Beltermann case.) That is the corollary, although only implicitly, of the judgment in Habermann-Beltermann [1994] 2 C.M.L.R. 681, in which the court had been called on to take that factor into account for the purposes of its ruling.

XII. It has been argued, however, that in the present case the question of unequal treatment does not even arise, inasmuch as the employer would also have dismissed a male employee who had asked for leave of absence, whether for medical or other reasons, over the same period in which he was meant to replace the female employee absent on maternity leave. Such "proof" purports to confirm that the dismissal arose exclusively from the need for the holder of the post in question to be at work during the period in question.

In other words, in a case such as this, dismissal should not be classified as (direct) discrimination on grounds of sex, inasmuch as the underlying cause - inability to perform the contract during a predetermined period of time - would lead to the same consequences with respect to a male employee in the same situation. That line of reasoning presupposes, however, that the circumstances of a pregnant woman are comparable to those of a male employee who is unable, for medical or other reasons, to work during a given period.

XIII. That possibility is expressly contemplated in the question submitted by the national court. What is more, it is clear from the order for reference that the problem has been raised in precisely those terms by the various national courts who have had occasion to deal with the case, precisely in order to verify, in accordance with section 5(3) of the Sex Discrimination Act 1975, whether there exists treatment which is in effect accorded only to men that can serve as a basis for comparison with that accorded to a woman in the applicant's situation, and, more particularly, whether it is permissible to compare a woman's inability to work on account of maternity and a man's inability to work, whether or not on medical grounds.

In that connection it seems to me of no avail to rely on the judgment in Handels-og Kontorfunktionaerernes Forbund i Danmark v. Dansk Arbejdsgiverforening (Case 179/88) [1992] ICR 332 (in particular paras. 14 to 17), in which the court considered that the dismissal of a female employee on account of repeated absences through illness, even though the illness may be attributable to pregnancy or confinement, does not constitute direct discrimination on grounds of sex if those absences occur after the period of maternity leave and would also lead in the same circumstances to the dismissal of a male employee. That judgment may certainly not be construed as meaning that the court has recognised as permissible, or even justifiable, the dismissal of a woman who is absent from work for a reason (illness) connected with pregnancy. Closer examination reveals that the court's decision turned on the fact that Mrs. Hertz's illness began after her return to work at the end of her maternity leave. The implication is that an illness connected with pregnancy is covered by the Directive, thus rendering dismissal unlawful, to the extent that such illness occurred during maternity leave, that is to say, during a period defined by the member states for the purposes of the derogation referred to in article 2(3) of the Directive. In that case, the same conditions (a number of absences over a certain period) were applied to workers of both sexes. In the present case, on the other hand, the termination of the employment relationship resulted from a condition (pregnancy) which indisputably affects women alone.

XIV. The judgment in the Handels-og Kontorfunktionaerernes case serves to demonstrate, if anything, that absence through illness may not be equated with absence on maternity leave. To the extent to which that judgment holds that it is not discriminatory to dismiss an employee on account of absences through an illness which, while it may be attributable to pregnancy or confinement, began after the end of the maternity leave, it follows a fortiori that pregnancy may not be equated with illness. An inference which can be drawn, however obvious it may sound, is that a sick woman is to be treated in the same way as a sick man, whatever the cause of her illness. A pregnant woman, on the other hand, may not simply on account of her pregnancy be placed at a disadvantage to such an extent as to be excluded from the employment sector.

Nor does it seem to me to be possible a fortiori to draw comparisons, although these were referred to in the course of the proceedings, between a woman on maternity leave and a man unable to work because, for example, he has to take part in a sporting event, even if it were the Olympic Games. Other considerations apart, a sportsman, even a champion (whether a man or a woman) is confronted with a normal choice reflecting his needs and priorities in life; the same cannot reasonably be said of a pregnant woman, unless the view is taken - but it would be absurd - that a woman who wishes to keep her job always has the option of not having children."

Judgment

"24. First, in response to the House of Lords' inquiry, there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovered very shortly after the conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons.

25. As the applicant rightly argues, pregnancy is not in any way comparable with a pathological condition, and even less so with unavailability for work on non-medical grounds, both of which are situations that may justify the dismissal of a woman without discriminating on grounds of sex. Moreover, in Handels-og Kontorfunktionaerernes Forbund i Danmark v. Dansk Arbejdsgiverforening (Case 179/88) [1992] ICR 332 the court drew a clear distinction between pregnancy and illness, even where the illness is attributable to pregnancy but manifests itself after the maternity leave. As the court pointed out, at p. 335, para. 16, there is no reason to distinguish such an illness from any other illness.

26. Furthermore, contrary to the submission of the United Kingdom, dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the Directive.

27. In circumstances such as those of the applicant, termination of a contract for an indefinite period on grounds of the woman's pregnancy cannot be justified by the fact that she is prevented, on a purely temporary basis, from performing the work for which she has been engaged: see the judgment in Habermann-Beltermann v. Arbeiterwohlfahrt, Bezirksverband Ndb./Opf. e. V. (Case C-421/92) [1994] 2 C.M.L.R. 681, 695, para. 25, and paras. X and XI of the Advocate General's opinion in this case, ante pp. 792-793."

70. Brown v Rentokil Ltd (ECJ) [1998] ICR 720

"3. …. the applicant was employed by Rentokil Ltd. 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.

4. In August 1990, the applicant informed Rentokil Ltd. 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.

5. Rentokil Ltd.'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. 

6. On 9 November 1990, Rentokil Ltd.'s representatives told the applicant 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.

7. The applicant 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.

….

13. The applicant 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/E.E.C.) ("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?

….

The first part of the first question

….

'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 Dekker v. Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus (Case C-177/88) [1992] ICR 325, 329, para. 12; Hertz [1992] ICR 332, 335, para. 13; Habermann-Beltermann v. Arbeiterwohlfahrt, Bezirksverband Ndb./Opf eV (Case C-421/92) [1994] E.C.R. 1-1657, 1675, para. 15, and Webb v. EMO Air Cargo (UK) Ltd (Case C-32/93) [1994] ICR 770, 798, para. 19.

17. As the court pointed out in Webb, at p. 798, para. 20, 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/E.E.C.) recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, secondly, 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/E.E.C.) 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/E.E.C.)), 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/E.E.C.) 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, Webb [1994] ICR 770, 798, paras. 21 and 22.

19. In replying to the first part of the first question, which concerns Directive (76/207/E.E.C.), account must be taken of that general context.

20. 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 Ltd. points out, the cause of the applicant'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.

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/E.E.C.) would be rendered ineffective: see Webb , p.799, para. 26."

22. Although pregnancy is not in any way comparable to a pathological condition (Webb, para. 25), the fact remains, as the Advocate General stresses in paragraph 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 Hertz [1992] ICR 332, 335, para. 15, the court, on the basis of article 2(3) of Directive (76/207/E.E.C.), 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/E.E.C.), such protection against dismissal must be afforded to women during maternity leave (Hertz, para, 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/E.E.C.) 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, pp. 335-336, paras. 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 Handels- og Kontorfunktioncerernes Forbund i ark v. Dansk Handel & Service (Case C-400/95) [1997] ECR I-2757, 2781-2782, para. 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, that may be taken into account under the same conditions as a man's absence, of the same duration, through incapacity for work.

28. The answer to the first part of the first question must therefore be that articles 2(l) and 5(1) of Directive (76/207/E.E.C.) 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

29. 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.

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, Gillespie v. Northern Health and Social Services Board (Case C-342/93) [1996] ICR 498, 513, para. 16.

31. 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.

32. Consequently, application of that contractual term in circumstances such as the present constitutes direct discrimination on grounds of sex.

33. 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."

71. We note the following matters arising from that case, which are relevant to the issues arising in the present appeal:
72. Rentokil contended unsuccessfully that the clause re sickness absence was applied equally to every employee and therefore that pregnant women were not being singled out for adverse treatment. In the same way the Respondents in the present case resist the claim on the basis that the bursary payments are terminated for absence from the course for any reason and not simply in the case of pregnant women.
73. Nothing in the judgment suggests that any distinction is being or to be drawn between dismissal and other working conditions; and subsequent cases indicate that there could be no such distinction. The Tribunal's conclusion at paragraph 127 that Brown could not help these Applicants because that case concerned dismissal and could not be used "to leapfrog all the limitations on the European right to maternity pay" therefore demonstrates erroneous reasoning, both in respect to the relevance of Brown and to the mis-characterisation of the Applicants' claims.
74. Contrary to the opinion of the Advocate-General, to which Mr. Lynch referred us in argument, the Court held at paragraph 24 that the principle of
    non-discrimination requires protection for women throughout the whole period of pregnancy and not just during maternity leave.
75. As is clear from paragraph 27, where a woman is absent owing to illness resulting from pregnancy or childbirth and her illness arose during pregnancy and persisted during and after maternity leave, her absence during the whole of the period starting from the beginning 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. Mr. Lynch submitted, as the Tribunal had stated at paragraph 119, that both Ms. Fletcher and Ms. Parkes had had periods of sickness of up to 60 days prior to their departure on "maternity leave" and had therefore used up their absence entitlement under the Scheme. It is clear, however, that these days cannot be taken into account in order to deny them the benefit of the bursary payments for maternity absence if, in law, they had been discriminated against.
76. The conclusion in paragraph 1, that the situation of a pregnant worker who is unfit for work as a result of illness associated with her pregnancy cannot be considered to be the same as that of a male worker who is ill and absent for the same time, is a further indication that it is impermissible for employers to defend a complaint of sex discrimination by a pregnant woman by saying that all employees are treated in the same way, thereby applying the same rule to different situations.
77. CNAVTS v Thibault [1998] IRLR 399

"The facts:

Evelyne Thibault was employed by CNAVTS, the French national employee old age insurance fund. The relevant national collective agreement governing her employment provided that any employee present at work for at least six months of the year must be the subject of a performance assessment. Employees receiving a satisfactory assessment received a merit increase in salary of 2% per year, up to a maximum of 24%.

In 1983, Mrs Thibault was absent due to illness for three periods totalling 52 days between February and June. She then took 16 weeks' maternity leave, in accordance with her entitlement, followed by six weeks' childcare leave as provided for under the collective agreement. This meant she was at work for 155 days during 1983.

The CNAVTS refused to carry out an assessment of Mrs Thibault's performance for 1983 because she was not present at work for six months. Therefore, she could not receive a performance pay increase.

She brought proceedings, claiming that she had been discriminated against on grounds of sex. The Labour Tribunal held that Mrs Thibault's absence on account of maternity leave should have been treated as a period of actual work under the French Labour Code and that the failure to assess her performance deprived her of an opportunity for promotion in pay grade on grounds of her sex contrary to the provisions of the Labour Code implementing the EC Equal Treatment Directive.

The Cour de Cassation [Court of Cassation] referred the following question to the European Court of Justice for a preliminary ruling:

'Whether Articles 1(1), 2(1), 5(1) and, if relevant, 2(4) of Council Directive 76/207/EEC of 9 February 1976 must be interpreted as meaning that a woman may not be deprived of the right to an assessment of performance, and consequently to the possibility of an advancement in career, on the ground that she was absent from work by reason of maternity leave?'

The French Government and the European Commission proposed an affirmative answer to the question referred. However, the UK Government, intervening in the case, argued that there was no sex discrimination against Mrs Thibault because the reason for which a performance assessment was not drawn up related to her absence from work; because the situation of a woman absent from work on maternity leave cannot be compared to someone who is working; because the determination of rights during maternity leave is a matter for the Member States (without prejudice to the provisions of the Pregnant Workers Directive); and because the Equal Treatment Directive does not confer any right to have periods of absence by reason of maternity counted as periods of work which could give rise to entitlement to a performance, assessment.

Advocate-General Ruiz-Jarabo Colomer, whose Opinion delivered on 9 January 1997 is reproduced below, gave the following suggested reply:

'Article 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 must be interpreted as meaning that it precludes a neutrally-worded national provision contained in a collective agreement, under which an employee who proves at least six months' attendance at work must be the subject of an assessment of performance by his or her immediate superiors, but which, when applied in practice, produces direct discrimination on grounds of sex in so far as it allows maternity leave to be counted as sick leave for the purpose of calculating the time spent at work by a female employee.'

….

The European Court of Justice held:

A woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance and, therefore, of the opportunity of qualifying for promotion to a higher pay grade as a result of absence on account of maternity leave, is discriminated against on grounds of her pregnancy and maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Equal Treatment Directive.

National provisions allowed by the Directive conferring pregnancy and maternity rights, such as maternity leave, are intended to ensured substantive equality between men and women regarding both access to employment and working conditions. Therefore, the exercise by women of pregnancy and maternity rights cannot be the subject of unfavourable treatment regarding their access to employment or their working conditions.

The principle of non-discrimination on grounds of sex in working conditions requires that a woman who continues to be bound to her employer by her contract of employment during maternity leave should not be deprived of the benefit of working conditions which apply to both men and women and are the result of that employment relationship.

In circumstances such as those in the present case, to deny a female employee the right to have her performance assessed annually would discriminate against her merely in her capacity as a worker because, if she had not been pregnant and had not taken the maternity leave to which she was entitled, she would have been assessed for the year in question."

At paragraph 17 of the Advocate General's Opinion he stated:

"17

The United Kingdom is of the opinion that Mrs Thibault was not the victim of discrimination on grounds of sex, for four reasons: first, because the reason for which an assessment of performance was not drawn up for her relates to her absence from work; second, because the situation of a woman who is absent from work as a result of taking maternity leave cannot be compared to that of a man or woman who is working; third, because the determination of all rights extended to women during maternity leave is a matter for the Member States, without prejudice to the provisions of Directive 92/85/EEC;⁴ and, finally, because Directive 76/207 does not confer any right to have periods of absence by reason of maternity counted as periods of work which could give rise to entitlement to an assessment of performance. It proposes that the Court should reply to the national court that, where a worker's right to have an assessment of performance drawn up for him or her in relation to a particular period is subject to proof of his or her attendance at work for a minimum length of time, Directive 76/207 does not require the employer to make such an assessment in the case of a female worker who, having taken maternity leave, was not at work for that minimum period.

….

19

In view of the conflicting positions adopted, I will say at the outset that I disagree totally with the opinions put forward by the United Kingdom and with the solution proposed in its written observations, and that, conversely, I agree with most of the arguments put forward both by the French Government and by the Commission.

….

21

With regard to the protection of working women who are pregnant or have recently given birth, Article 2(3) of Directive 76/207 allows Member States to adopt provisions which introduce different treatment. In its judgment in the Hofmann case,⁷ the Court held that '... by reserving to Member States the right to retain, or introduce provisions which are intended to protect women in connection with "pregnancy and maternity'" the Directive recognises the legitimacy, in terms of the principle of equal treatment, of protecting a woman's needs in two respects. First, it is legitimate to ensure the protection of a woman's biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth ...'

Maternity leave, the rules for which are set out in Articles 45 and 46 of the collective agreement governing Mrs Thibault's employment relationship, which is normally split between the weeks immediately before and after childbirth and is restricted to women, undoubtedly falls within the scope of that derogation.

22

On this point, I agree with Advocate-General Tesauro when he states: 'On closer inspection ... the provisions adopted in implementation of Article 2(3) of the Directive cannot properly be called derogations from the principle of equality, in that they seek rather to ensure that that principle operates in substance, by permitting such "inequalities" as are necessary in order to achieve equality. In short, different treatment is allowed or imposed, in favour of and to protect female workers, in order to arrive at material and not formal equality, since that would constitute a denial of equality.'⁸

23

However, this case is concerned not with national provisions for the protection of women, adopted on the basis of Article 2 (3) of Directive 76/207, but with the application of the principle of equal treatment as regards access to employment and working conditions, laid down in Article 5(1) of the Directive.

24

In interpreting Directive 76/207, the Court has established clear and consistent case law setting out its views on unfavourable treatment received by a woman in the labour market because of the fact that she is pregnant.

….

29

Like the Commission, I note that that rule, which requires a minimum of six months' attendance at work in order for a right to an assessment of performance to arise, lays down a neutral criterion which applies equally to men and women and is not bound, in principle, to affect either group adversely since all are likely, for example, to be absent on account of illness. However, in reality, it is obvious that that rule is liable to operate consistently to the disadvantage of women since it allows the employer to refuse to assess a female employee whose absence during the year under consideration was due, in large measure, to the fact that she took maternity leave.

….

32

I conclude that, by being applied equally to different situations, the rule in the collective agreement produces discriminatory effects. Consequently, in order to achieve the equal treatment sought, it will be necessary to treat unequally that which is, in fact, different.

33

For that reason, since the substantive equality between men and women as regards employment precludes any consideration, either when they take up employment or during the employment relationship, of a factor which – by definition - affects only women,¹³ it will not be possible, when calculating the attendance at work of a female employee in order to establish a right to an assessment of performance, to add the period of maternity leave either to periods of sick leave or to absences justified for any other reason.

….

35

At the hearing, the United Kingdom argued in favour of the applicability to this case of the precedent established by the Court in its judgment in the Gillespie case,¹⁴ according to which '... women taking maternity leave provided for by national legislation ... 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.' It infers from that statement that Mrs Thibault, not having been at work for at least six months, is not entitled to have an assessment of performance drawn up for her in relation to 1983 since otherwise she would receive the same treatment as a man or woman who had been working.

36

I disagree with that argument for two reasons. First, because the Gillespie case concerned application of the principle that men and women should receive equal pay for equal work, laid down by Article 119 of the Treaty and developed in Directive 75/117/EEC,¹⁵ and the Court held that that principle does not require that women should continue to receive full pay during maternity leave, a conclusion which appears logical in view of the fact that women on maternity leave are not working.

However, the issue in this case is the application of the principle of equal treatment for men and women as regards working conditions, and the Court has stated, in the Gillespie judgment, that Directive 76/207, as is clear from the second recital in its preamble,¹⁶ does not apply to the principle of equal pay.

37

Secondly, even if I took the view that the precedent set by Gillespie was applicable to this case, I would still not agree with the conclusions which the United Kingdom draws from it. In fact, the Court also stated in that judgment that, since the benefit paid during maternity leave is calculated on the basis of the average pay received by the woman while she was actually at work, the principle of non-discrimination requires that she benefit from any pay rise, even if backdated, which is awarded between the period covered by the reference pay and the end of maternity leave, adding that 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.

In my opinion, if it were assumed that the Court's judgment in Gillespie were applicable to this case, it would serve to confirm that the act of equating maternity leave with sick leave, when calculating attendance at work for the purpose of determining whether a woman is entitled to an assessment of performance, is discriminatory. In fact, one could take up the Court's wording and, adapting it to this case, state that to deny a woman the right to an assessment of performance because she has been absent from work on maternity leave would discriminate against her purely in her capacity as a worker since, had she not been pregnant and given birth, she could not have been denied that right."

We note (a) that there are close parallels between the arguments raised by the UK Government and rejected in that case and those now being raised before us in the present appeal;
(b) that whilst the Applicants in this case were not employees but vocational trainees they continued, during their maternity absence, to be bound to their universities and were therefore in a continuing relationship with them; (c) the case raised, once again, a rule said to be neutral in its application, but which was liable to operate consistently to the disadvantage of women taking maternity leave.

78. Hoj Pedersen v Kvickly Skive [1999] IRLR 55

One of the questions in this Danish case referred to the ECJ for consideration was whether it was contrary to the ETD to send home a pregnant woman who was not unfit for work without paying her full salary, if the employer could not find work for her. The ECJ held that, in such circumstances, the failure to pay her full salary was sex discrimination in her working conditions contrary to Article 5.

"51 Finally the national court wishes to know whether it is contrary to Directives 76/207 and 92/85 for national legislation to provide that an employer may send home a woman who is pregnant, although not unfit for work, without paying her salary in full when he considers that he cannot provide work for her.

52 It must first be noted that, in accordance with Article 5 of Directive 76/207, men and women must enjoy the same working conditions, including the conditions governing dismissal.

53 When legislation such as that at issue in the main proceedings affects only women employees, it constitutes discrimination, in breach of that provision.

54 It is true that, 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, of protecting a woman's biological condition during and after pregnancy (Webb, cited above, paragraph 20).

55 However, legislation such as that at issue in the main proceedings cannot fall within the scope of that provision.

56 It appears from the order for reference that the Danish legislation is aimed not so much at protecting the pregnant woman's biological condition as at preserving the interests of her employer. The national court states that such legislation is based on the idea that, given the nature of the employment, the employer may impose requirements with regard to the employee's working capacity which justify her ceasing work at a date prior to the three-month period preceding the confinement.

57 Turning to Directive 92/85, it must be noted that Articles 4 and 5 set up an assessment and information procedure in respect of activities liable to involve a risk to safety or health or an effect on workers who are pregnant or breastfeeding. That procedure can lead to the employer making a temporary adjustment in working conditions and/or working hours or, if such an adjustment is not feasible, a move to another job. It is only when such a move is also not feasible that the worker is granted leave in accordance with national legislation or national practice for the whole of the period necessary to protect her safety or health.

58 It is clear from the order for reference that legislation such as that at issue in the main proceedings does not satisfy the substantive and formal conditions laid down in Directive 92/85 for granting the worker leave from her duties since, first, the reason for giving leave to the employee is based on the interest of the employer and, secondly, that decision can be taken by the employer without first examining the possibility of adjusting the employee's working conditions and/or working hours or even the possibility of moving her to another job.

59 It follows from the foregoing that it is contrary to Directives 76/207 and 92/85 for national legislation to provide that an employer may send home a woman who is pregnant, although not unfit for work, without paying her salary in full when he considers that he cannot provide work for her."

79. This case was considered recently by the EAT in Hardman v Mallon
    [2002] IRLR 516, where it was held that the scope of the judgment in Brown, considered in the light of Pedersen, was wide enough to include working conditions; and to require consideration of the special protection to be given to women during and after pregnancy. The Applicant was employed as a care assistant at a home of elderly women. Her job involved lifting residents. She informed her employer that she was pregnant in November 1999 and discussed the need for a risk assessment in March 2000. She produced a medical certificate stating that she needed to avoid heavy lifting, but she was offered only a cleaner's job. She claimed that this was less favourable than her existing post and refused the offer. She contended that she had the right under the Employment Rights Act to suspension on full pay. Further discussions did not resolve the matter and she presented a complaint to the Tribunal alleging sex discrimination and breach of the Employment Rights Act. The Tribunal upheld the claim under the ERA. However, they dismissed the claim of sex discrimination on pregnancy grounds on the basis that she had suffered no detriment under the SDA because she was not treated less favourably than a man or a non-pregnant woman in that the employer would not have carried out a risk assessment for them either. They reasoned that it appeared to them that they were being asked to widen the definition of discrimination to encompass the failure of an employer to treat a woman more favourably than a man.
80. Allowing the appeal, the EAT held at paragraphs 13-15 as follows:

"13

It is submitted on behalf of the applicant that the tribunal paid no attention to critical aspects of the Sex Discrimination Act. In particular, the tribunal engaged in an analysis of what is known in the academic and practitioner publications, as the 'hypothetical male'. The tribunal said this of the Sex Discrimination Act:

'Section 6 ... provides that it is unlawful for an employer to discriminate against an employee by subjecting her to a detriment. However, it is clearly the case that the employer must "discriminate" which is defined in s.1 of the Act as treating an employee less favourably than he treats or would treat a man (on the ground of her sex).

Here, [the respondent] had not treated [the applicant] in any way differently from the way in which she would have treated a man (or indeed a woman who was not pregnant). She would not have (and indeed had not) produced risk assessments in respect of any of her employees.

What, it appeared to us, we were being asked to do was to widen the definition of discrimination to encompass a failure of an employee to treat a woman more favourably than a man.

It was candidly conceded on behalf of the applicant that this would amount to positive discrimination. Not only is positive discrimination (except in very limited circumstances) frowned upon, the wording of s.1 is simply not capable of such an interpretation.

It follows from this that we conclude that the failure of [the respondent] to undertake an assessment does not amount to an unlawful act of discrimination.'

Ms Gill points out the unfairness of using the words 'a candid concession' in respect of an applicant unrepresented as she was, and indicates the very narrow focus of the employment tribunal in looking at the limited circumstances in which positive discrimination is frowned upon. As is clear from the citation from the statute we have given above, special treatment is required to be considered and comes within s.2(2), and consideration of the relevant circumstances under s.5(3). Further, there is specific provision in s.51 for special measures, none of which appears to have been at the forefront of the tribunal's mind when it made that judgment. One, of course, bears in mind that neither party was represented.

617, 637, 3000

14

In our judgment, the proper approach is to construe those statutes by reference to the Equal Treatment Directive and to the Pregnant Workers Directive. It is not necessary for the treatment by the respondent of the applicant to be compared with the respondent's treatment of a comparable male employee, or a non pregnant female employee - see Webb v EMO Air Cargo (UK) Ltd (No.2) [1995] 1RLR 645. In the context of the dismissal of a pregnant employee on the grounds of her pregnancy, the House of Lords, applying the judgment of the European Court of Justice on a reference by the House, found that pregnancy was a relevant circumstance within the meaning of s.5(3), with the consequence that no comparison with a male employee was necessary. Thus, if the basis of the treatment is pregnancy, it is unlawful, irrespective of the respondent's comparable treatment of men, or for that matter, non-pregnant women. Application of the Webb principle was provided in Brown v Rentokil Ltd (1998] IRLR 445 and Pederson [1999] IRLR 55. The former is a dismissal case; the latter is a case of disparate treatment of, on the one hand illness, and on the other, pregnancy.

15

The proper approach in the construction of applicable treatment is to consider not just dismissal but working conditions. We hold that the scope of the judgment of the European Court in [Brown] albeit directed at dismissal, is wide enough to include working conditions and to require consideration of the special protection which is to be given to women during and after pregnancy - see paragraphs 14 to 22 of the judgment. As the Court puts it, the protection of a woman's biological condition during and after pregnancy indicates a special relationship which has to be protected. One way in which it is protected is by carrying out a risk assessment pursuant to the Management Regulations. Failure to do so impacts disparately on pregnant workers. It is, of course, a duty on all employers to carry out a risk assessment but in respect of a pregnant worker a failure to carry out such a risk assessment, in our judgment, is discrimination. It is the application of the same rule in different situations having an unfavourable impact on a particularly protected worker, here, a pregnant worker. Thus, direct application of the second part of the European Court's judgment to the answer to the first question in paragraphs 30 and 31 indicates discrimination."

81. Finally, in relation to the Equal Treatment Directive, the Tribunal erred in our view in referring to the ETD (paragraph 122) as providing "only permissively for special treatment" in relation to pregnancy and childbirth in Article 2(3) and regarding that as a reason for its unavailability to these Applicants. The purpose of Article 2(3) is to enable Member States to put in place special measures benefiting women in relation to pregnancy and maternity, which would otherwise be contrary to the principle of non-discrimination. It does not in any way limit the principle that it is unlawful sex discrimination to treat women less favourably on grounds of pregnancy or maternity during the protected period, ending with the conclusion of the period of maternity leave determined by the State. As the ECJ held in Brown that protection arises from the principle of non-discrimination in the ETD, which includes but is not limited to that in Article 2(3) and which is mandatory for all Member States. We agree with Ms. Gill that the Tribunal's reliance (at paragraph 34) on paragraph 74 of the Advocate General's Opinion to the contrary in Brown was therefore misplaced. Contrary to his Opinion, the Court found that the protected period covered the whole of the pregnancy and not just the period of maternity leave; and, in view of their decision that dismissal of a pregnant woman was discrimination even though other employees who were absent would have been dismissed, the Court found it unnecessary to answer the second question referred to it, to which this paragraph of the Opinion was directed.
82. In any event, however, in the present case the Applicants were not seeking to rely on special measures provided to protect pregnant women. Rather they sought the maintenance of their bursary payments during pregnancy and maternity absence, as occurs in respect of sickness absence and as may be provided for within the terms of the Scheme already in operation.
83. In our judgment, therefore, the law is clear; and the Tribunal erred in concluding that the Applicants were treated in exactly the same way as other vocational trainees, male or female, who were absent from the course and that there was no discrimination contrary to sections 1 and 14 of the SDA. Treating the Applicants, who were absent because of pregnancy or maternity, in the same way as other trainee midwives who were absent for other reasons (save for short-term sickness) does not constitute a defence to less favourable treatment. The relevant circumstances in section 5(3) of the SDA were different, because the Applicants were pregnant and other trainees were not. The same rule was being applied to different situations; and the policy imperative of reducing or eliminating disadvantaged pregnant women because of their protected status means therefore that it was discriminatory to withdraw from them the facility of the bursary payment. There is no necessity, on this analysis, for the Applicants to compare their treatment with the more favourable treatment of trainees absent for reasons of sickness in order to succeed in their complaints of sex discrimination.
84. Further, in deciding whether less favourable treatment is on grounds of pregnancy, it is not permissible to say that the treatment is on grounds of absence from the course, rather than on grounds of pregnancy, and that other absent employees are treated equally so that there is no sex discrimination. The Decision of the EAT in O'Neill v Governors of St. Thomas More RCVA Upper School [1996] IRLR 372 makes the same point, although by a slightly different route. At first instance, rejecting the complaint of sex discrimination by an unmarried teacher of religious education at the school, who was dismissed when pregnant following a relationship with a Roman Catholic priest, the employment tribunal had found that an important motive for the dismissal was not the applicant's pregnancy per se, but the fact that the pregnancy was as a result of a liaison with a priest and the school therefore saw her position as untenable. Allowing her appeal the EAT (Mummery P. presiding) held that in deciding the question of causation, namely whether her dismissal was on the grounds of pregnancy, the basic question is what is the "effective and predominant cause" or the "real and efficient cause" of the act complained of. At paragraph 55 they concluded that:

"(4) In our view, the distinction made by the tribunal between pregnancy per se and pregnancy in the circumstances of this case is legally erroneous. The tribunal may have been led to draw such a distinction as a reflection of the perceived subjective motives of the governors advanced by them in their submissions. The 1975 Act requires the industrial tribunal to decide a case of sex discrimination by having regard to the question whether the treatment complained of was on the ground of sex, not by having regard to the subjective motives of the alleged discriminator. (Consideration of motives is to be avoided.) Dismissal for pregnancy is on a ground of sex. Pregnancy is unique to the female sex. The concept of 'pregnancy per se' is misleading, because it suggests pregnancy as the sole ground of dismissal. Pregnancy always has surrounding circumstances, some arising prior to the state of pregnancy, some accompanying it, some consequential on it. The critical question is whether, on an objective consideration of all the surrounding circumstances, the dismissal or other treatment complained of by the applicant is on the ground of pregnancy. It need not be only on that ground. It need not even be mainly on that ground. Thus, the fact that the employer's ground for dismissal is that the pregnant woman will become unavailable for work because of her pregnancy does not make it any the less a dismissal on the ground of pregnancy. She is not available because she is pregnant. Similarly, in the present case, the other factors in the circumstances surrounding the pregnancy relied upon as the 'dominant motive' are all causally related to the fact that the applicant was pregnant - the paternity of the child, the publicity of that fact and the consequent untenability of the applicant's position as a religious education teacher are all pregnancy-based or pregnancy-related grounds. Her pregnancy precipitated and permeated the decision to dismiss her."

85. In relation to Tracey Parkes, the Tribunal erred, in our view, in deciding at paragraph 133 that a causal link could not be established between the treatment of her and the actions of the Respondents because the Respondents were not told at the relevant time about her pregnancy. It was unnecessary for the Respondents to know of Ms. Parkes' pregnancy in order for them to have treated her less favourably in denying her absence from the course with continued bursary payments. Their treatment of her was a direct result of the invariable policy of treating maternity absence as withdrawal from the course and consequently terminating the bursary. It was knowledge of that policy which led her university to advise her that, if she took maternity leave, her bursary would cease. The Respondents did not need to know the effect of such a policy on each trainee midwife in order to be held to have caused it.
86. For these reasons, therefore, we reject Mr. Lynch's first and main proposition that the Tribunal correctly decided that there was no discrimination in this case. His second proposition is that the Applicants were seeking, illegitimately through the provisions of section 14, to impose on the Respondents an obligation to create a maternity pay arrangement that went beyond the maternity pay provisions required of employers and the State; and many of his submissions were addressed to the protective maternity leave and pay regime applying to workers, which, he contended, undermined the Applicants' sex discrimination complaint. Whilst, in our judgment, that regime and the cases relating to it have no direct application to these section 14 claims, we turn now to consider this case in the context of the case law relating to maternity pay, because of the reliance placed upon it by Mr. Lynch and by the Tribunal below.

80. The Relationship with the Protective Regime

It seems clear, firstly, on the basis of the unchallenged figures before the Tribunal and before us, in the Table attached to the Applicants' Schedule of Loss, that as a matter of fact the Applicants' claims for continuation of their bursaries did not exceed that to which they would have been entitled if they were workers or employees and therefore entitled to statutory maternity pay (SMP) or maternity allowance (MA). Both Ms. Wilkinson and Ms. Parkes had completed sufficient service on the course to claim SMP, having completed 26 weeks by the 14^th week prior to confinement (section 164(2) Social Security Contributions and Benefits Act 1992); and they were in receipt of bursary payments in excess of the lower earnings limit (164(2) and section 5(2)) of the 1992 Act, as amended. In Ms. Fletcher's case, had the bursary been treated as earnings, she would have qualified for MA. She had sufficient service to claim MA, having completed 26 weeks of the course prior to her expected week of confinement, (section 35(1)) and was in receipt of bursary in excess of the MA threshold of £30 per week (section 35A). Thus, Ms. Fletcher would have been entitled to £1,324.40 by way of MA, as against £1,057.20 for 60 days of bursary. Ms. Parkes would have been entitled to £1,530 SMP as against £927.20, for 60 days of bursary, and Ms. Wilkinson to £2,564 SMP as against £892.80, for 60 days of bursary payment. The Tribunal's reference at paragraph 116 to
Ms. Fletcher claiming, without a service qualification, more than an employee could demand under the UK maternity regime in the ERA and Social Security legislation was therefore erroneous.

87. In considering the maternity regime and its relevance to these claims it is important to identify correctly what the Applicants were seeking. They were not, in fact, claiming more than they would have been entitled to if they were workers. Nor were they requiring the Respondents, in our view, to "create a maternity pay arrangement that went beyond the maternity pay provisions required of employers and the State" as the Tribunal state at
    paragraph 135. The bursary scheme's provisions, in their present form and as currently operated, already enable the Secretary of State to provide guidance as to its lawful operation in relation to pregnant trainees. No new legislation enabling the continuation of bursary payments for an appropriate period would be required; and Mr. Lynch does not submit to the contrary. It is necessary to keep this in mind when considering the "pay" cases referred to and relied on by the Tribunal.
88. The main ECJ cases where the entitlement to pay during maternity leave was considered are Gillespie v Northern Health and Social Services Board [1996] ICR 498 and Alabaster v Woolwich plc [2004] IRLR 497. The two issues in Gillespie were (1) whether the protective, non-discrimination principle established in Webb required the maintenance of full pay for women workers on maternity leave provided for by national legislation; and (2) whether that principle meant that women on maternity leave must receive the benefit of a pay rise awarded before or during that leave. These issues were considered under the equal pay principles in Article 141 (then 119) because the Pregnant Workers' Directive was not yet in force. However, the ECJ took that Directive into account in arriving at their conclusions.
89. At paragraphs 17 to 22 the Court held:

"17. 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.

18.As to whether 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/E.E.C.) 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/E.E.C.)) 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.

19. 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.

20. That being so, it follows that at the material time neither article 119 of the E.E.C. Treaty nor article 1 of Directive (75/117/E.E.C.) 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, name , 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.

21. 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."

22. 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."

90. Thus, women workers who are on maternity leave provided for by national legislation (precisely formulated in this way by the ECJ) are in a special, protected position and are entitled as a result to the benefits given to them under the maternity regime. In view of their special status they are not in a comparable situation to men or women who are still at work and cannot therefore claim full pay. However, even before Article 11 of the PWD came into force, they were entitled under Article 141 to payment of an "adequate allowance", which was sufficient to ensure that the purpose of maternity leave, namely the protection of women's health both before and after childbirth, was not undermined. This was a mandatory requirement for Member States; and we do not accept Mr. Lynch's submission that there was no requirement to ensure an adequate allowance for women on maternity leave before the PWD. This entitlement to an adequate allowance arose from the general, protected status accorded to pregnancy and maternity in the case law and codified in the PWD. The ECJ's first finding, that women workers on maternity leave are not entitled to claim their full salaries payable under their contracts, is the one exception to the requirement of the PWD that, in all other respects, a woman on maternity leave must continue to enjoy the benefits due to her under her contract (Article 11). The second finding, relating to the entitlement to the pay rise, confirms that the mandatory requirement not to discriminate against women on grounds of pregnancy or maternity continues to operate, notwithstanding the provisions of the PWD.
91. In Alabaster the ECJ revisited and confirmed Gillespie and upheld the Applicant's claim that a woman who receives a pay increase before the start of her maternity leave is entitled, in accordance with Article 141 and the judgment in Gillespie, to have that increase taken into account in the calculation of the earnings-related element of her SMP, even though the pay rise was not backdated to the relevant reference period for calculating her entitlement under the SMP Regulations. This is an important case because it is the most recent ECJ authority on the relationship between the woman's right not to be discriminated against on grounds of pregnancy or maternity and her special status whilst on maternity leave. Describing the evolution of the case law the Advocate-General said as follows at paragraphs 76-80:

"76 Under the current case law, the Court applies the principles of equal pay and equal treatment outside the period of maternity leave only.

77 Thus the Court has held that the principle of non-discrimination precludes refusing to enter into a contract of employment with a female worker on account of her pregnancy; [Dekker] dismissal of a female worker for the same reason; [Webb] dismissal of a female worker for absences due to incapacity for work caused by illness resulting from her pregnancy; [Brown] an employer's refusal to allow a woman to return to work on the ground that she failed to inform her employer that she was pregnant before signing the contract of employment; [Bush [2003] IRLR 625] and a rule that deprives a woman of the right to an assessment of her performance because she was absent from the undertaking on account of maternity leave. [Thibault]

78 Similarly, the Court has found that the principle of equal pay precludes an employer, when granting a Christmas bonus, from taking a woman's absence on maternity leave into account so as to reduce the amount thereof. [Lewen [2000] IRLR 67] The Court also takes the view that the principle of equal pay demands that a woman continue to receive full pay where she is unfit for work before her maternity leave by reason of her pregnancy, if men who are unfit for work have that right. [Pedersen]

79 It is clear that these various different events - recruitment, dismissal, return to work, assessment, bonus payments, sick leave - occur outside the period covered by maternity leave.

80 However where the woman is on maternity leave the court no longer applies either the principle of equal pay or the principle of equal treatment. It seems on the contrary that it considers the position in the light of the provisions of Directive 92/85 alone."

92. The Court held at paragraphs 41-50 as follows:

"41 It must be observed in this connection that under Article 1 of Directive 75/117 the principle of equal pay for men and women for equal work enshrined in Article 119 of the Treaty, which was applicable at the time of the facts in the main proceedings, means that for the same work or for work to which equal value is attributed all discrimination on grounds of sex with regard to all aspects and conditions of remuneration must be eliminated.

42 Regarding first the concept of pay in the aforementioned provisions, according to the definition in the second paragraph of Article 119 of the Treaty it includes all consideration which workers receive directly or indirectly from their employers in respect of their employment. The legal nature of such consideration is not important for the purposes of the application of that article, provided that it is granted in respect of employment (see case 12/81 Garland [1982] IRLR 111, paragraph 10, and Gillespie, paragraph 12).

43 Consideration classified as pay includes, inter alia, consideration paid by the employer by virtue of legislative provisions and under a contract of employment whose purpose is to ensure that workers receive income even where, in certain cases specified by the legislature, they are not performing any work provided for in their contracts of employment (see case C-360/90 Bötel [1992] IRLR 423, paragraphs 14 and 15, and Gillespie, paragraph 13 and the cases cited therein).

44 It follows that, 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 Treaty and Directive 75/117 (Gillespie, paragraph 14, and case C-411/96 Boyle and others [1998] IRLR 717, paragraph 38).

45 Secondly, the Court has consistently held 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-279/93 Schumacker [1995] ECR 1-225, paragraph 30, and Gillespie, paragraph 16).

46 In that connection women taking maternity leave provided for by national legislation are in a special position which requires them to be afforded special protection, but which is not comparable, in particular, either with that of a man or with that of a woman actually at work (Gillespie, paragraph 17). Therefore they cannot usefully rely on the provisions of Article 119 of the Treaty to argue that they should continue to receive full pay while on maternity leave as though they were actually working, like other workers (Gillespie, paragraph 20).

47 However the Court found, thirdly, at paragraph 22 of Gillespie, that 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 since, had she not been pregnant, she would have received the pay rise.

48 It follows that in a case such as that in the main proceedings where the income guaranteed by national law to the worker is calculated partially on the pay received by her before her maternity leave, Article 119 of the Treaty entitles her to have a pay rise which was awarded to her after the beginning of the period covered by the reference pay and before the end of maternity leave taken into account in determining the elements of her pay used to calculate the consideration paid by her employer.

49 The requirement recalled in paragraph 22 of the judgment in Gillespie means that any pay rise awarded after the beginning of the period covered by her reference pay must be included in the elements of pay used to determine the amount of pay owed to the worker during her maternity leave, and, contrary to the contention of the United Kingdom Government, should not be limited to cases where the pay is backdated to that period.

50 In the light of the foregoing, the reply to the first and second questions must be that Article 119 of the Treaty must be interpreted as requiring that, in so far as the pay received by the worker during her maternity leave is determined, as least in part, on the basis of the pay she earned before her maternity leave began, any pay rise awarded between the beginning of the period covered by the reference pay and the end of the maternity leave must be included in the elements of pay taken into account in calculating the amount of such pay. This requirement is not limited to cases where the pay rise is backdated to the period covered by the reference pay."

93. The first Gillespie principle, that women on maternity leave are in a special, protected position and cannot compare themselves to men and women at work, was applied by the
    Court of Appeal in Clark v Secretary of State for Employment [1997] ICR 64. It was found to defeat a claim comparing a woman on maternity leave and in receipt of SMP with a sick employee, for the purposes of statutory provisions regulating notice pay. At page 74 Neill LJ, with whom the other members of the Court agreed, said that:

"Community law entitles Member States to make special provisions for women who are absent work because of pregnancy or confinement. The provisions that are made then become a separate code. The code provides pregnant women with special protection, but when in receipt of payments under the code their position cannot be 'compared' with that of a man or with that of a woman in work"

94. Similarly, the principle explained the ECJ's decision in Boyle v EOC [1999] ICR 360 that a woman worker, who already has the benefit of maternity leave and an adequate allowance under national legislation, will not succeed in a claim that her employer, who makes additional maternity benefits contingent on certain conditions which do not apply to employees claiming sick pay or other benefits, is discriminating against her contrary to Article 141 or the ETD.
    The reason is because the additional maternity benefits available exceed the requirements of the PWD and are not available to other employees, so that no comparison can be made. Thus, a clause in the contract making the application of more favourable maternity pay provision than that prescribed by national legislation conditional upon the pregnant woman, unlike any worker on sick leave, returning to work after childbirth, failing which she must repay the contractual maternity pay in so far as it exceeds the level of the statutory payments in respect of that leave, does not constitute unlawful sex discrimination contrary to Article 141 and the ETD. Other findings in this case, relating to the way in which particular maternity entitlements under the contract of employment operated, involved an application of the same principle.
95. What will be clear, from this consideration of the cases, is that the Applicants in the present appeal are not workers entitled to or in receipt of any maternity pay or maternity allowance under national legislation. Nor is the bursary "pay" for the purposes of Article 141 or the PWD. As vocational trainees the Applicants cannot qualify under the regime providing for the protection of women on maternity leave under national legislation. Mr. Lynch's submissions, whilst relying upon the principles which apply under the protective code provided for women workers who are on maternity leave, fail to acknowledge that it is the mandatory provision of leave, and of payments of an adequate allowance, which remove from employers the obligation to pay to women workers their full salary when on maternity leave. We cannot accept his submission that the existence of the code makes no difference to the principle that it is not sex discrimination not to pay a woman's salary whilst she is on maternity leave. Ignoring this code seems to us to omit a vital piece of a jigsaw which, in the case of these Applicants, can never be completed because they are not workers. Further, it treats the Applicants' claim, erroneously, as if it was one for full pay rather than for compensation for unlawful sex discrimination in terminating the facility of the bursary.
96. Nor do we accept Mr Lynch's submission that, because it is not sex discrimination for an employer to cease to pay an employee her salary whilst she is on maternity leave, that demonstrates that the "but for" argument underpinning the Applicants' claims cannot succeed. The purpose of the "but for" test is not to claim a particular benefit but to assist in identifying whether the treatment complained of (here the termination of the bursary) is on the grounds of pregnancy or maternity and is therefore sex discrimination. It defeats the Respondents' contention that the application of a neutral provision, applying equally to all trainees who are absent from the course other than those on short-term sickness absence, means that there is no sex discrimination.
97. A woman who becomes pregnant has no choice but to be absent for pregnancy/maternity reasons; and she cannot be compared with a man or a woman who takes time off work or training by choice. But for their pregnancies these Applicants would not have been absent. Their absence caused the termination of their bursary payments. Thus, sex discrimination and causation are established. The Applicants are outwith the protective code for workers on maternity leave, which runs parallel with, but is separate from, the protection afforded to pregnant women under sex discrimination law. The "but for" test is the established test for determining direct discrimination as a matter of law. Absent the protective maternity code, the established test for determining direct discrimination must apply.
98. The Applicants' exclusion from the protective code also explains why, although there is no necessity for them in this case to compare their treatment with that of sick men in order to succeed in their complaints of sex discrimination, pregnant women can make such a comparison when it is appropriate for them to do so in order to demonstrate that such discrimination has occurred. In our judgment the Tribunal were wrong in directing themselves at paragraph 118 that Webb "ruled out a comparison between sickness and pregnancy" in all circumstances. Whilst it is not necessary for the pregnant woman to compare her treatment with that of a sick man in order to succeed in her claim of discrimination, and whilst an employer dismissing a woman on grounds of pregnancy cannot defend her complaint of sex discrimination by stating that he would have treated a sick man in the same way, the purpose of the Webb principle is to protect pregnant women. It is not to prevent them from comparing their treatment with more favourable treatment afforded to sick men, where appropriate, in order to demonstrate that a different rule is being applied in comparable circumstances and that discrimination has occurred.
99. The case of Pedersen provides a good illustration of the circumstances in which a comparison with a sick employee is permitted, when the woman is not within the special regime for workers who are on maternity leave provided by national legislation. Thus, depriving a pregnant worker of full pay when a non-pregnant worker on sick leave would have had their pay maintained was unlawful sex discrimination. In these circumstances the comparison with treatment afforded to sick employees is for her benefit. It enables her to demonstrate the manner in which the discrimination has occurred; and it is consistent with the general prohibition against detrimental treatment on grounds of pregnancy. The Applicants in the present case, not being workers entitled to maternity leave under national legislation, are therefore also entitled to rely, in the alternative, upon the more favourable treatment of sick trainees under the bursary scheme, as a measure of the less favourable treatment afforded to them; though for the reasons we have already given we consider that it is not necessary for them to do so in this case.
100. In our judgment, therefore, the Tribunal erred in their approach to the Applicants' claims and in their application, to them, of the case law dealing with women on maternity leave and entitled to an adequate allowance under the protective code, which did not apply to these Applicants. Their correct statement of the principle, that a woman on maternity leave cannot compare her benefits with those available to a man on sick leave, is clearly right. However, the requirement of non-discrimination continues to apply to women who are not on maternity leave and not in receipt of maternity pay, who can therefore complain of discrimination in relation to their working conditions and as contrary to the provisions of section 14 SDA. The Tribunal's mis-characterisation of these claims as claims for full pay or maternity pay led them, in our judgment, into error in their approach to the Applicants' complaints of sex discrimination.
101. At paragraph 135 the Tribunal also regarded as relevant to this case the EAT decision in Banks v Tesco Stores [1999] ICR 111. This case established that Article 11 of the PWD provides Member States with an escape clause, permitting the exclusion from the maternity scheme of those employees whose earnings are below the level at which they can qualify for maternity pay or allowance under national rules. If there is no obligation on the State to pay SMP and MA to women whose earnings are below the qualifying thresholds, and no sex discrimination in such circumstances, they reasoned that it would be an odd conclusion if the Respondents could be held to be discriminating against these Applicants.
102. However, the ruling in Banks does not apply to these section 14 claims, when analysed correctly as we have set out above. Further, on the facts, these Applicants would not have been excluded from SMP or MA, since the level of bursary payments made to them was above the relevant earnings limit and they had sufficient service to qualify for the relevant benefits.
103. In any event we agree with Ms. Gill that it is highly unlikely that the decision in Banks, that it was lawful to exclude from maternity entitlement all workers in receipt of earnings below the qualifying limit for SMP/MA, would be the same today following the ECJ's decision in
     R v Secretary of State for Trade and Industry Ex Parte BECTU [2001] IRLR 559. The ECJ were in that case concerned with an exclusion clause in almost identical terms in respect of eligibility for paid annual leave under Regulations implementing the EC Working Time Directive 93/104/EC. The ECJ, bearing in mind the Directive's purpose, concluded that, whilst Article 7 gave Member States the right to lay down conditions for entitlement to the benefit, as in the case of Article 11 of the PWD, it did not permit conditions which excluded the right entirely. The qualifying condition that a worker should have been employed for
     13 continuous weeks before accruing entitlement to paid annual leave was therefore unlawful (see paragraphs 48-53 of the judgment). It would in our view be equally unlawful to exclude an entire class of workers from entitlement to SMP or MA, where the State deemed them not to be in receipt of "pay" because their earnings were below the level at which deductions were made for tax and national insurance.
104. After oral argument in this appeal concluded and judgment was reserved the
     ECJ decision in Land Brandenburg v. Sass (Case C-284/02b(18/11/04) came to the attention of the parties. In January and February 2005 we received further written submissions from counsel on both sides relating to this decision and its relevance to the present appeal and we have taken these into account in arriving at our conclusions. The somewhat unusual facts were that the Claimant Ms. Sass gave birth to her child in January 1987, at which time her employment relationship was governed by the statutory labour code of the German Democratic Republic (GDR). Following the birth of her child she took 20 weeks statutory maternity leave under the code. After the reunification of Germany her employment was governed by the statutory code known as the Maternity Protection Law and by a collective agreement, under the terms of which she qualified for a higher salary grade after a period of 15 years' service. In determining whether the qualifying period under the collective agreement had been met, the employer, Land Brandenburg, did not take account of the 20-week period of statutory maternity leave which applied under the GDR code, but instead took account only of the short 8-week period that would have been applicable had the Maternity Protection Law applied.
     Ms. Sass claimed that her employer should have taken the 20-week period into account under the legislation governing her employment relationship at the relevant time.
105. The issue was whether the whole of her maternity leave could be included in the qualifying period for classification to a higher grade and the claim therefore fell within the scope of the ETD, the facts arising prior to the date for implementation of the PWD. These facts, in our view, were analogous to those in the case of Thibault. The Court held that before the PWD, Article 2(3) of the ETD permitted Member States to derogate from the equal treatment principle by providing special statutory provisions for the benefit of pregnant women and new mothers if they wished to do so. The GDR, the Federal Republic of Germany and reunified Germany all chose to introduce such provisions. It was for the National Court and not the ECJ to decide whether the purpose of the full protected period under the GDR Scheme was the same as the purpose of the 8-week period, which was a specific circumstance peculiar to the facts of the case and could only be determined by the National Court.
106. We disagree with Mr. Lynch's submission that this decision reinforces the Respondents' submissions in this appeal. The case, in our judgment, confirms that being deprived of a promotion to a higher grade leading to a pay increase because of absence on maternity leave falls within the scope of a working condition in Article 5 of the ETD and amounts to less favourable treatment on the ground of sex. A working condition can thus include the provision of a financial benefit, as in the case of the bursary in this appeal. The Claimant's rights were not conditional on her being on statutory maternity leave. The ECJ confirmed the requirements of Community law, that the taking of statutory maternity leave must not interrupt the relationship between employer and employee and must not, therefore, affect the application of rights derived from that relationship. The right not to be discriminated against contained in the Equal Treatment Directive therefore still applies. The permissive nature of the derogation in Article 2(3), as we have already stated, does not detract from the principle that there must be no less favourable treatment of a woman absent from work because of pregnancy and maternity. Nor does the case render the "but for" test to establish causation inapplicable. Indeed, at paragraphs 50 and 51, the ECJ appears to us to be applying exactly that test, in stating:

"50 Finally, therefore, the nature of the leave actually taken by Mrs Sass must be considered in order to determine whether it can be regarded as equivalent to a period of protection like that provided for by the MuSchG, intended to protect a woman who has given birth.

51 If so, that leave should have been taken into account in the calculation of the qualifying period in the same way as a period of protection would be, that is to say, in its entirety. If it were not taken into account, Mrs Sass would be subject to unfavourable treatment because of her absence on maternity leave and, therefore, would suffer discrimination on the grounds of sex within the meaning of Directive 76/207 in that she will not attain the higher salary grade until 12 weeks after a male colleague who started work in the former GDR on the same day as she did."

107. Detriment

The Tribunal held at paragraphs 133-134 that, although it was not strictly necessary for them to determine whether the Applicants had been subjected to a detriment, their conclusion was that there was no detriment caused to them in ceasing to make bursary payments when they stopped attending their courses. They were treated in the same way as other trainees. In Ms. Parkes' case there was no detriment since she was not discriminated against in the terms on which she was afforded access to training or other facilities.

108. In Shamoon v Chief Constable of the Royal Ulster Constabulary[2003] ICR 337, the House of Lords held, as is common ground, that "detriment" under the legislation must be given a broad interpretation and may exist in the absence of some physical or economic consequence, provided only that a reasonable worker (or trainee) would or might take the view that the treatment accorded to her had in all the circumstances been to her detriment (see the speech of Lord Hope at paragraphs 31-37). In our view the Tribunal appear to have confused the issue of whether the Applicants were treated less favourably as a matter of law with the issue of detriment, namely whether a reasonable trainee, bearing in mind the treatment of sickness absence under the scheme might take the view that the termination of her bursary payments when she took authorised maternity absence amounted to a detriment. That error, in our judgment, led them to the wrong conclusion. Had the Tribunal applied the test correctly they could only have concluded, on the facts of this case, that the Applicants had established detriment. Ms. Fletcher and Ms. Wilkinson were without financial assistance at a time when they most needed it. Those trainee midwives who were absent on sick leave continued to receive their bursary. In the case of Ms. Parkes she had to agree with her personal tutor to enter an arrangement whereby she had to make up clinical hours prior to taking her pregnancy related absence, and on her return to the course soon after the birth of her child. It is clear from paragraph 114 that the Tribunal were concerned about that arrangement requiring, as it did, long hours of work in the hospital both when she was heavily pregnant and soon after the birth. Further, it seems to us that the Tribunal were wrong to suggest at the end of paragraph 134 that the Applicants had not pleaded detriment on the basis of Ms. Fletcher being treated as withdrawing from the course. That this was something which emerged during the evidence, and which the Applicants adopted as part of their case and made submissions upon, is clear from paragraph 88 of the Tribunal's Reasons; and Mr. Lynch did not disagree.
109. The Reassessment Claim

It follows from our analysis in relation to the Applicants' claims generally, that the Respondents' requirement for Ms. Fletcher to repay an amount of her bursary solely because of its reassessment, caused by her having to suspend her attendance on the course for pregnancy reasons also amounts to unlawful sex discrimination; and the Tribunal's Decision to the contrary was wrong in law. The reassessment arose in her case because, notwithstanding a period of maternity leave having been agreed with her university, she was treated as having withdrawn from her course. Thus, in accordance with the terms of the scheme it was necessary for her bursary to be reassessed as a daily entitlement. Ms. Fletcher was in receipt of both the basic bursary and an Older Student's Allowance (OSA) and the Tribunal noted at paragraph 10(xiii) the anomalous situation whereby the basic bursary was reassessed, but not the OSA. The consequence of this reassessment was that, as at the date when she ceased to attend the course, she was treated as having received an "overpayment" of the basic bursary. In common with all the other trainees on the course she had received payment of the bursary from the
1^st September of her first academic year, notwithstanding the fact that the course did not commence until 17^th September. When the bursary was reassessed as a daily rate Ms. Fletcher was treated as no longer entitled to retain that portion of the bursary.

110. At paragraph 10(xiv) the Tribunal found as a fact that the consequence of the demand for repayment was that Ms. Fletcher was asked to repay the bursary received for those first
     16 days, which meant that she would not have those funds to cover the last 16 days of training, for which bursary would not be paid. Other trainees were treated as still being entitled to that portion of bursary and would therefore be in funds for the last days of the course. The Tribunal noted that Blackpool had been evasive in correspondence with Ms. Fletcher and that these were the effects of reassessing her award. Her complaint therefore, as the Tribunal correctly understood, was that in interrupting her training she was being required to repay the benefit of bursary to which students who had not interrupted their training would maintain their entitlement. The Tribunal accepted that this gave rise to a detriment but found that it was not caused by her pregnancy or maternity absence.
111. In our judgment, if Ms. Fletcher's complaint had been correctly identified and analysed in accordance with the principles we have set out above, the Tribunal would have concluded that she was being directly discriminated against on grounds of sex and that she could complain that the termination of the facility of the bursary was a breach of section 14 of the SDA. But for her absence by reason of pregnancy, the bursary would not have been terminated. If she had not been wrongly treated as withdrawing from the course the notion of overpayment would not have arisen. The Tribunal's reliance on Boyle at paragraph 140 was erroneous because
     Ms. Fletcher was not seeking, as a worker, to retain an amount of pay in excess of the adequate allowance required by the PWD.
112. CONCLUSIONS

As the Tribunal themselves observed, the necessary review of European case law relating to maternity provision, in the light of the Respondents' submissions in this appeal, has taken us a considerable way from section 14 of the Sex Discrimination Act, to which we now return, this being the section of the Act which is at the heart of this appeal. For the reasons set out above we conclude as follows:

(1) The Applicants' claims fall within section 14 and the bursary is a facility for training within the meaning of that section. Further, the Applicants' claims, as trainee midwives undergoing vocational training in the National Health Service are within the scope of the Equal Treatment Directive.

(2) Section 14 must be construed so as to be consistent with the United Kingdom's obligations under the Equal Treatment Directive to protect against discrimination pregnant vocational trainees in the working environment undertaking the same shifts, on the same wards and in the same working conditions as their qualified colleagues. We pay tribute to the careful and conscientious way in which this Tribunal approached their task. Having correctly identified the Applicants' claims in their preliminary decision on jurisdiction, however, we consider that they led themselves into error in then mis-characterising the Applicants' claims as claims for full pay or maternity pay and in their erroneous application, to them, of case law concerning entitlements for women on maternity leave provided for in national legislation.

(3) The policy considerations underpinning the protection for pregnant women workers in the Equal Treatment Directive and the Pregnant Workers' Directive apply equally to vocational trainees. Termination of the bursary under rule 20 of the scheme was effectively caused by the Applicants' pregnancies and was discriminatory. The Respondents should have exercised the discretion afforded to them under the scheme, applying the principles established in European case law relating to discrimination on the grounds of pregnancy, namely (a) that the application of the same rule to different situations is discriminatory; or (b) that it is discriminatory to treat the Applicants, when on maternity absence, less favourably than trainee midwives absent for ill-health who would receive their bursary payments for 60 days of absence, that is, a different rule was being applied in comparable circumstances.

(4) The Tribunal erred in finding that there was no detriment suffered by these Applicants. There was ample material before them to establish detriment. If the Tribunal had correctly applied the test for establishing detriment the decision could only have been in the Applicants' favour.

113. For these reasons this appeal must be allowed. On the facts of this case we find that the Respondents have unlawfully discriminated against the Applicants on grounds of sex. We therefore remit the matter to the Tribunal to determine remedy. We add these final observations. When correctly analysed these claims, arising as they do in the particular context of trainee midwives in the NHS, are not in our judgment, the bold and remarkable claims for maternity pay suggested by both Mr Lynch and by the Tribunal. Mr Lynch referred to the possible implications of a decision in the Applicants' favour, in particular for small employers. We observe, however, both that, as Mr Lynch accepted, some vocational trainees might in fact be workers, who would therefore come within the maternity leave scheme already in existence under national legislation. Further, vocational trainees who are not in employment are often funded by the Government or by a relevant training body, so that many employers would not in any event have to bear any costs. Every case, as it seems to us, will therefore fall to be determined on its own particular facts. As we have already stated, no new legislation is required for this particular scheme to be operated lawfully, in accordance with our judgment. We noted that Mr Lynch did not submit to us that the Scheme, as presently operated, was being applied correctly and in accordance with its own terms. The Secretary of State has yet to adopt a policy and to issue guidance as to the operation of the scheme and the exercise of discretion, in accordance with its provisions, in the cases of trainee midwives who become pregnant.
114. We recognise that the Applicants' claims are new, because they raise for the first time the entitlement to protection from discrimination of vocational trainees who, when the facility of a bursary providing financial support during their training is terminated due to authorised maternity absence, are denied the minimum adequate allowance which European law requires to be afforded to workers during their maternity leave. However, the special status of vocational trainees has merited their protection under both the Equal Treatment Directive and under section 14 of the Sex Discrimination Act. In our judgment the Applicants' claims under section 14 are well-founded on the present state of the law.
115. The matter is therefore remitted to the Tribunal for remedy to be determined. We resist the invitation extended to us by Mr Lynch in his further written submissions to identify what payments, and over what period, stood to be paid to the Applicants under the scheme if the appeal is successful. Whilst we see considerable force in the submissions and calculations set out in the Applicants' schedule of loss, on which we have commented in this appeal, we have not had the benefit of any submissions or calculations in response from the Respondents. These are matters which, in our view, are more appropriately determined by the Tribunal having regard to our decision and to the parties' submissions to them upon it.