C-400/95

LARSSON v FØTEX SUPERMARKED

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 18 February 1997

1. The question referred for a preliminary During her pregnancy, she was absent on ruling by the Court of Justice in the present medical grounds on two occasions. The first case has been raised by the Danish Sø- og occasion lasted 18 days (from 7 to 24 August Handelsret (Maritime and Commercial 1991). The second was the result of a loosen­ Court), which seeks an interpretation of a ing of the pelvic ring caused by her preg­ number of provisions of Council Directive nancy and lasted some four and a half 76/207/EEC of 9 February 1976 on the months (from 4 November 1991 to 15 March implementation of the principle of equal 1992). Immediately afterwards, her maternity treatment for men and women as regards leave commenced, and she gave birth on 2 access to employment, vocational training April 1992. and promotion, and working conditions. 1

4. The 24 weeks' maternity leave to which she was entitled came to an end on 18 Sep­ 2. That question arises in the dispute cur­ tember 1992. Thereafter, she took annual rently before that court between Handels- og leave until 16 October. Kontorfunktionærernes Forbund i Danmark, acting on behalf of Helle Elisabeth Larsson, and Dansk Handel & Service, acting on behalf of Føtex Supermarked A/S, plaintiff and defendant respectively.

During her maternity leave and annual leave, Ms Larsson continued to be treated for the loosening of her pelvic ring. She remained absent on medical grounds once her leave was over and was not considered fit for work until 4 January 1993. 3. According to the facts as set out in the order for reference, Ms Larsson was engaged by Føtex in March 1990. In August 1991, she informed her employer that she was pregnant.

In written observations, the defendant accepted that view; the plaintiff, however, in a written submission dated 6 July 1995, re­ iterated the request for the case to be referred to the Court of Justice, arguing that the judgment cited requires a distinction to be drawn between illnesses which arise during the period of maternity leave and those which arise subsequently and are attributable to the pregnancy or confinement. 6. Ms Larsson brought an action challenging her dismissal, alleging that it contravened the national law on equal treatment and seeking compensation of DKR 172 602, correspond­ ing to 78 weeks' salary. The defendant objected that, without prejudice to the provi­ sions of national law, Directive 76/207 does not preclude a woman from being dismissed 8. By decision of 16 August 1995, the Sø- og after the expiry of her maternity leave on the Handelsret rejected the request for a refer­ ground of absence due to an illness attribut­ ence for a preliminary ruling, on the ground able to pregnancy or confinement and that that there was no reason to suppose that in Danish law does not lay down any specific its answer the Court of Justice would take a rules affording special protection to a woman different approach from that which it had in that situation. adopted in Hertz. The plaintiff appealed against that decision to the Højesteret (Supreme Court), which upheld the appeal.

As a result of the Højesteret's ruling, the 7. The parties asked the Sø- og Handelsret to Sø- og Handelsret made a new order on 19 seek a preliminary ruling from the Court of December 1995, referring the following Justice on the interpretation of Article 5(1) of Directive 76/207. In a note to the parties of 4 April 1995, the national court consid­ 2 — Handels- og Kontorfunktionærernes Forbund i Danmark v ered that, in the light of this Court's ruling Dansk Arbejdsgiverforening [1990] ECR I-3979.

'1 . Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, 2. ...' means that men and women shall be guaran-

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teed the same conditions without discrimi­ of protection comprising Ms Larsson's preg­ nation on grounds of sex.' nancy and maternity leave and once her annual leave had come to an end. On 10 November, when she was notified of her dis­ missal, she had been absent on medical grounds for less than four weeks — a very short period from any point of view and one which would never have led to dismissal in 12. The plaintiff and the defendant in the the case of a man. main proceedings, the United Kingdom, the Netherlands Government and the Commis­ sion all submitted written observations within the period prescribed by Article 20 of the EC Statute of the Court of Justice, and the plaintiff, the defendant, the Danish Gov­ ernment, the United Kingdom and the Com­ mission made oral submissions at the hear­ ing.

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15. At the hearing, the Danish Government able to that pregnancy and/or on absence concentrated on two aspects of the case. during maternity leave. First, it stressed the differences between the facts which led to Ms Hertz's dismissal and the circumstances in which Ms Larsson was dismissed: the former did not fall ill until several months after resuming work and was absent on medical grounds for 100 working days in the course of a year, whereas Ms Larsson fell ill during her pregnancy, did not have an opportunity to resume work after 16. The United Kingdom submits that no her confinement and was dismissed less than distinction is to be drawn according to four weeks after she should have done so. whether the illness first arose during the Second, it explained the need to divide Ms maternity leave or later. It considers that the Larsson's absence from work into four sepa­ principle underlying the Court's judgment in rate periods: her absence on grounds of ill­ Hertz is that the Directive requires that ness attributable to the pregnancy before women be protected against adverse treat­ confinement; her maternity leave; her annual ment for reasons linked to pregnancy or its leave; and her absence subsequently accorded inherent risks and consequences. Such pro­ on medical grounds because she was suffer­ tection includes the recognition by the Mem­ ing from an illness attributable to her preg­ ber States of a sufficient period of maternity nancy, this last period of absence being the leave to accommodate the normal conse­ only one which could be taken into account quences of pregnancy; Directive 76/207 goes for the purpose of her dismissal. no further, although the Member States may, if they wish (and they are not obliged to do so), establish more extensive protection on the basis of Article 2(3).

dismissal of a woman as a result of absence tion, and, where applicable, provided that the outside the period of maternity leave pro­ competent authority has given its consent. vided for by national legislation, even if the absence is attributable to an illness which arose as a result of pregnancy, if the mater­ nity leave period is sufficient to accommo­ date the normal consequences of pregnancy and a man who was absent on sick leave for a similar period, excluding the maternity leave period, would also have been dis­ That would appear, on the face of it, to be missed. the period considered by the Community legislature to be sufficient to protect women against dismissal for absence from work attributable to pregnancy and confinement, without there being any obligation on the Member States to provide more extensive protection. The Netherlands Government therefore submits that the national court's question should be answered in the negative.

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already arisen during pregnancy and contin­ woman's periods of absence on medical ued during maternity leave, with recovery grounds, where the illness is attributable to taking place only subsequently; and, second, the pregnancy. In that regard, it considers whether it is contrary to Community law for that the prohibition of dismissal of a woman an employer to take account, when calculat­ between the beginning of her pregnancy and ing the duration of the absence from work the end of her maternity leave, laid down in forming grounds for dismissal under national Article 10(1) of Directive 92/85, is no more law, both of absences between the beginning than the legislative embodiment of a pre­ of pregnancy and the beginning of maternity existing legal situation. leave and of the duration of that leave itself. In that regard, it would appear that the rea­ son for Ms Larsson's dismissal was her 'lengthy period of absence'; however, taking account of the fact that her maternity leave ended on 18 September 1992 and that she then took one month's paid leave, she had been absent on account of illness for less than one month when she was notified of her dismissal.

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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-400/95

21. The facts in Hertz were as follows: Ms so, whether protection against dismissal due Hertz was engaged by a supermarket as a to such illness was unlimited in time. part-time cashier and saleswoman on 15 July 1982. One year later, after a pregnancy marked by complications for most of which, with the consent of her employer, she was on sick leave, she gave birth to a child. On the expiry of her maternity leave which ran for 24 weeks after the birth, Ms Hertz resumed her work in late 1983 and had no health problems until June 1984. Between then and June 1985, however, she was once more on sick leave, for 100 working days. It was com­ 23. In its judgment, the Court stated: 'In the mon ground between the parties that the ill­ case of an illness manifesting itself after the ness was a consequence of her pregnancy maternity leave, there is no reason to distin­ and confinement. guish an illness attributable to pregnancy or confinement from any other illness. Such a pathological condition is therefore covered by the general rules applicable in the event of 4 illness.' In answer to the national court's questions, it held that, without prejudice to the provisions of national law adopted pur­ suant to Article 2(3) of Directive 76/207, Article 5(1), in conjunction with Article 2(1) thereof, does not preclude dismissals which In June 1985, her employer informed her are the result of absences due to an illness that it was terminating her contract of attributable to pregnancy or confinement. employment with the statutory four months' notice, stating that her periods of absence were the ground for her dismissal and that it was normal practice to dismiss workers who were often absent owing to illness.

25. If the only difference between the two reasons for Ms Larsson's dismissal, account cases had been the fact that Ms Hertz's ill­ was taken not only of that period but also of ness arose after the end of her maternity the period of nearly five months during leave while Ms Larsson's had already arisen which she was absent on medical grounds during her pregnancy, the answer to be given during her pregnancy and to examine would, in my view, have to be the same whether that would be compatible with the again. As the Court said in Hertz, 'Male and principle of equal treatment for men and female workers are equally exposed to ill­ women with regard to working conditions, ness. Although certain disorders are, it is including the conditions governing dismissal, true, specific to one or other sex, the only laid down in Article 5(1) of Directive 76/207. question is whether a woman is dismissed on account of absence due to illness in the same circumstances as a man; if that is the case, then there is no direct discrimination on 5 grounds of sex.'

Then, in view of the possibility that account grounds after the end of maternity leave, was taken, when Ms Larsson was dismissed, irrespective of the moment of onset of the of the period of nearly five months during illness or even whether it originated in preg­ which she was absent on medical grounds nancy. In Ms Larsson's case, her period of during her pregnancy, I shall analyse — in absence on medical grounds after the end of the light of this Court's judgments interpret­ her annual leave must be taken into account, ing Directive 76/207 and of the view, which I for the purposes of her dismissal, in the same 6 share, of Advocate General Darmon and way as for a male worker. 7 Advocate General Tesauro , that substantive equality between men and women at work requires that no account be taken, either as regards access to employment or during the employment relationship, of a circumstance which, by definition, affects only women — whether that dismissal meets the require­ The maternity leave ments of the principle of equal treatment or whether, on the contrary, her employer was guilty of direct discrimination on grounds of sex by taking account of a circumstance which can apply only to women.

30. As we know, prior to 19 October 1994, when the period allowed for the transposi­ tion of Directive 92/85 into national law came to an end, the adoption of measures to protect women as regards pregnancy and maternity was a matter for the Member States under Article 2(3) of Directive 76/207, The periods of absence following the mater- which concerns — and we must not lose nity leave sight of this — the principle of equal treat­ ment for men and women as regards, inter alia, working conditions. Maternity leave, which, in Ms Larsson's case, was 24 weeks under Danish employment legislation, is the most typical example of a measure to protect women adopted by the Member States on the basis of that provision.

free a woman who has given birth from the conditions, including the conditions govern­ obligation to work for a specified period, I ing dismissal. consider that not only may she not be dis­ missed during that period but also that her absence from work cannot be taken into account for the purposes of a subsequent dismissal. That interpretation is inevitable in the light of this Court's statement in Hertz that the directive 'admit[s] of national provi­ 32. Whilst it is certainly true that Article 10 sions guaranteeing women specific rights on of Directive 92/85 requires the Member account of pregnancy and maternity, such as States to prohibit the dismissal of women maternity leave. During the maternity leave during the period from the beginning of accorded to her pursuant to national law, a their pregnancy to the end of their maternity woman is accordingly protected against dis- leave, that provision does not, in my opin­ missal due to absence. ...'. 8 ion, resolve the problem I am considering, for a number of reasons.

The periods of absence on medical grounds First, because Ms Larsson was dismissed not during pregnancy during her pregnancy or her maternity leave but after the end of the latter period (leaving aside the fact that the period allowed for transposing the provisions of Directive 92/85 into national law came to an end after the material time in the present case).

The answer must be no, for two reasons.

33. In order to decide whether absence on 35. The first derives from the case-law of medical grounds during pregnancy may con­ this Court, which, although it has not yet stitute absence giving grounds for dismissal given a specific ruling in that regard, has in accordance with the requirements of the none the less very clearly shown how dis­ principle of equal treatment for men and missal of a woman on grounds of pregnancy women, it is necessary to draw a distinction is to be categorized. The Court's decisions depending on the cause of the illness. I see interpreting Directive 76/207 may be sum­ no objective reason for not taking a pregnant marized, for present purposes, as follows: woman's absence from work, due to illness, into account for the purposes of dismissal in the same way as a man's absences although, since 19 October 1994, an employer must wait until the end of the maternity leave before dismissing a woman. Indeed, I con­ — dismissal of a woman on account of preg­ sider that the application of the principle of nancy constitutes direct discrimination equal treatment for men and women requires on grounds of sex, whereas dismissal on account of repeated periods of sick leave which are not attributable to pregnancy 9 — Fifteenth recital. or confinement does not constitute direct

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10 — Hertz, cited above in footnote 2, paragraphs 13 and 14 of the judgment. At the time of that notification, her period of 11 — Webb, cited above in footnote 7, paragraph 25 of the judg- absence can be qualified as lengthy only if, ment. 12 — Case C-421/92 Habermann-Beltermann v Arbeiterwohl- when calculating it, account is taken at least fahrt Bezirksverband [1994] ECR I-1657, paragraph 25, and of the period of nearly five months during Webb, cited above in footnote 7, paragraph 26 or the judg- ment. which she was absent on medical grounds

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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-400/95

before her maternity leave began, which affect women, problems of health attribut­ includes four and a half months of absence able to it cannot be covered by the general due to the loosening of her pelvic ring attrib­ rules applicable to both men and women in utable to her pregnancy and perhaps, the event of illness. although not necessarily, also of her period of maternity leave. I do not believe that her period of annual leave was taken into account.

40. Pregnancy is a condition, of limited duration, which affects only women, and 42. For both those reasons, I consider that, does so not in abstract terms but in a very for the purposes of applying the principle of practical manner, with effects which may equal treatment with regard to working con­ range from slight discomfort to serious ditions, including the conditions governing problems affecting health, making it neces­ dismissal, laid down in Article 5(1) of Direc­ sary for some women to be absent from tive 76/207, it is necessary to draw a line at work for periods of varying length and with the point when the maternity leave comes to varying degrees of suffering in order to an end. From that point on, any illness from enable their pregnancy to proceed to a suc­ which a woman suffers, whether or not occa­ cessful conclusion. sioned by pregnancy, will fall under the gen­ eral rules applicable to all workers. Periods of absence on medical grounds due to health problems attributable to pregnancy, up to the moment of childbirth, however, cannot be treated in the same way, for the purposes 41. It seems to me to be obvious that, as of dismissal, as a man's absences on grounds pregnancy is a situation which can only of illness.

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LARSSON v FØTEX SUPERMARKED

Conclusion

In the light of the foregoing considerations, I therefore propose that the Court should answer the Sø- og Handelsret's question as follows:

Article 5(1), in conjunction with Article 2(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, does not preclude a woman from being dismissed as a result of periods of absence subsequent to her maternity leave, where those periods of absence are due to an illness which arose during pregnancy and has continued both during and after the maternity leave, unless, when calculating the periods of absence for the purposes of dismissal, account is taken of periods of absence on medical grounds for health problems attributable to pregnancy prior to childbirth.