C-394/96

IV — The national legislation I - 4192

V — The observations submitted to the Court of Justice I - 4195

VI — Examination of the preliminary questions I - 4197

A. Opening remarks 1-4197

B. The case-law of the Court of Justice on the application of employment rights governed by Directive 76/207 to workers who are pregnant or who have recently given birth I - 4201

(1) The Dekker and Hertz judgments, in which the Court held that it was dis­ criminatory to refuse to engage a pregnant woman but not to dismiss her because of incapacity for work commencing after maternity leave, even though the illness was caused by the confinement I - 4201

C. The first question from the House of Lords: dismissal of a pregnant woman through incapacity for work attributable to pregnancy I - 4213

D. The second question from the House of Lords: dismissal of a pregnant woman during the period in which, had she fulfilled the requirements laid down by national law, she could have absented herself from work on account of preg­ nancy and confinement I - 4219

VII — Conclusion I - 4222

1. Is it contrary to Community law, and mainly to transport and change Sanitact units 1 specifically to Directive 76/207/EEC (here­ in shops and other centres. She became preg­ inafter 'Directive 76/207'), for an employer nant and informed Rentokil in August 1990. to dismiss a pregnant worker on account of incapacity for work caused by her preg­ nancy, the period of such incapacity having exceeded that which, under the contract of employment, entails dismissal of workers on grounds of sickness? That, in general terms, is the question on which the House of Lords seeks a preliminary ruling in this case. Her pregnancy later became complicated through a number of interrelated causes, of which details are not given in the documents before the Court. As from 16 August 1990 she submitted a succession of four-week medical certificates mentioning various diag­ I — The dispute before the national courts noses such as 'symptoms of pregnancy', 'bleeding in pregnancy' or 'pregnant back­ ache'. From that time, until her dismissal, the appellant remained unable to work.

7. The Employment Appeal Tribunal dis­ missed Mrs Brown's appeal by judgment of 23 March 1992. That tribunal considered itself bound by the decision of the Court of Appeal in Webb v EMO Air Cargo UK Lim- 5. The national court states in its order for ited and held that the industrial tribunal had, reference that, on the basis that 22 March as the law stood at that time, reached the 1991 was also the expected date of confine­ correct conclusion. ment, then, had the appellant been employed for two years on 30 December 1990, she would have been entitled to absent herself from work from the beginning of the 11th week before confinement 2and would have had the right to return to work at any time in the 29 weeks following her confinement. 8. Lord Allanbridge, giving the judgment of the Extra Division of the Court of Session, dated 18 January 1995, held that a prelimi­ 2 — Pursuant to section 33 of the Employment Protection (Con­ solidation) Act 1978. nary conclusion was that in Mrs Brown's

I-4189

OPINION OF MR RUIZ-JARABO — CASE C-394/96

case there was no discrimination under the (b) Does it make any difference to the Sex Discrimination Act 1975. He further answer given to Question 1(a) that held that the clear distinction established by the employee was dismissed in pur­ 3 the Court of Justice in the Hertz case suance of a contractual provision between pregnancy and illness attributable to entitling the employer to dismiss pregnancy was applicable to Mrs Brown's employees, irrespective of gender, appeal. Therefore, the appellant, whose after a stipulated number of weeks of absence was due to illness and who was dis­ continuous absence? missed on account of that illness in February 1991, could not succeed on the facts relevant to her case.

The Community provisions of which an (1) Application of the principle of equal interpretation is needed for judgment to be treatment with regard to working conditions, given in this dispute are all contained in including the conditions governing dismissal, Directive 76/207, namely Article 2(1) and (3) means that men and women shall be guaran­ and Article 5(1) and (2), which provide as teed the same conditions without discrimi­ follows: nation on grounds of sex.

(2) To this end, Member States shall take the measures necessary to ensure that: '(1) For the purposes of the following pro­ visions, the principle of equal treatment shall mean that there shall be no dis­ crimination whatsoever on grounds of sex either directly or indirectly by refer­ ence in particular to marital or family (a) any laws, regulations and administrative status. provisions contrary to the principle of equal treatment shall be abolished;

(b) any provisions contrary to the principle of equal treatment which are included in (2) ... collective agreements, individual con­ tracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended.

(3) This Directive shall be without preju­ dice to provisions concerning the pro­ tection of women, particularly as regards pregnancy and maternity.' (c) ..."

I-4191

OPINION OF MR RUIZ-JARABO — CASE C-394/96

…'

4 — Council Directive 92 /85 92/ /EEC of 19 October 1992 on the 85/ 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 As regards rights of employees in connection 16((1) of individual directive within the meaning of Article 16 of.. Directive 89 89//391 391//EEC EEC)) (OJ 1992 L 348 348,, p. 1). with pregnancy and maternity, the 1978 Act

I-4192

BROWN v RENTOKIL

provided, at the time of Mrs Brown's dis­ — of the expected week of confinement or, missal, that an employee who is absent from if the confinement has occurred, the date work because of pregnancy or confinement on which she gave birth; will be entitled to return to work, provided that the following conditions are met:

— she submits, at the employer's request, a medical certificate indicating the expected week of confinement. — she continues to be employed, whether or not at work, at the beginning of the 11th week before the expected date of confinement;

Finally, so far as is relevant here, the 1986 Maternity pay will be payable for a maxi­ Act provides that a female employee will be mum period of 18 weeks, normally com­ entitled to maternity pay from her employer mencing in the 11th week preceding the if she meets the following conditions: expected confinement date, but no later than the sixth week. Provision is made for two types of maternity pay, referred to as the higher rate and the lower rate. The higher rate is equivalent to nine-tenths of a wom­ an's normal weekly earnings for the period of eight weeks preceding the 14th week — she has been in the employer's service for before the expected week of confinement; a continuous period of at least 26 weeks, the lower rate, the amount of which is fixed, ending with the week immediately pre­ applies when it is found to exceed the higher ceding the 14th week before the expected rate. A woman who, for a continuous period date of confinement, but has ceased to of at least two years ending at the beginning work wholly or partly because of preg­ of the 14th week prior to the expected con­ nancy or confinement; finement date, has worked for an employer who is liable to pay the allowance to her will receive it at the higher rate for the first six weeks and at the lower rate for the remain­ ing period. A woman working for her employer under an employment contract involving employment for less than 16 hours — she has received weekly earnings for the weekly will not be entitled to receive the period of eight weeks ending with the allowance at the higher rate. A woman week immediately preceding the 14th entitled to maternity pay who is unable to week before the expected date of confine­ claim the higher rate will receive the lower ment which are not less than the lower rate. earnings limit in force before the com­ mencement of that 14th week;

V — The observations submitted to the 15. The respondent states that it is necessary Court of Justice to go back to a date falling 11 weeks before the expected date of confinement in order to arrive at the date on which Mrs Brown's employment rights should be considered. Since on 30 December 1990 she had not worked for her employer for a continuous period of two years she was not entitled to the benefit of the right to return to work provisions, nor could she rely on the provi­ sions concerning unfair dismissal intended to 13. Written observations were submitted protect pregnant women against dismissal on within the period laid down by Article 20 of account of their pregnancy. She was, how­ the EC Statute of the Court of Justice, and ever, entitled to maternity pay at the lower oral argument was presented at the hearing rate, payable by the State. by the appellant, the respondent, the United Kingdom Government and the Commission.

I-4195

OPINION OF MR RUIZ-JARABO — CASE C-394/96

dismissed after 26 weeks' absence, is not dis­ As regards the fact that Mrs Brown was dis­ criminatory. In support of that view, it gives missed when, if her length of service had the example of an employer who employs been sufficient, she would have been entitled three pregnant women. The first, who is to absent herself from work on account of robust, has no time off until she is able to pregnancy, the respondent considers that, as absent herself from work by reason of the applicable Community law stood at that maternity; the second has some time off due time, it was exclusively for the Member to pregnancy-related health problems before States to determine the conditions under the beginning of her absence; the third is Mrs which a woman would be entitled to such Brown's case: her pregnancy-related incapac­ right of absence and to set the duration ity for work exceeded 26 weeks and she was thereof. Exercising that prerogative, the dismissed on the same terms as a male United Kingdom imposed the legal require­ employee after absence through illness for ment of two years' service. In any event, Mrs precisely the same period. Why should such Brown was dismissed for being absent on an approach be described as sex discrimi­ sick leave for the number of weeks laid nation? On the contrary, if Mrs Brown were down in her contract of employment, and treated in a manner different from other not for her absences in the short period for pregnant women or male employees, that which, had she been entitled to absent herself would be equivalent to introducing positive from work on account of pregnancy, she discrimination applicable only to a section of could have done so. pregnant employees rather than in all cases of pregnant employees.

VI — Examination of the preliminary ques- tions

17. The Commission states that there is no objective justification for making a distinc­ tion during pregnancy, in order to apply dif­ ferent treatment to them, between the period A. Opening remarks before the worker can exercise the right to absent herself from work and the period from that time until the birth. Nor does it consider that there is any justification for distinguishing between dismissal for reasons of pregnancy and dismissal for reasons of pregnancy-related incapacity for work, pro­ 18. Before considering the problems raised vided that dismissal takes place when the by the questions, I wish to make a number worker is still pregnant, since health prob­ of observations. lems associated with pregnancy are due to a specifically female condition both before and during her absence. The application to women in Mrs Brown's situation of the rule applicable to workers in general, in case of illness, constitutes discrimination against women since the situations involved are dif­ ferent. 19. The first concerns the order for refer­ ence, which is particularly laconic in its account of the facts of the main proceedings. There is no indication, for example, of how long Mrs Brown had been pregnant when she became unfit for work or of the expected date of confinement or whether her preg­ nancy was in any way subject to high risks. I It adds that that view is confirmed by Article also consider that the reasons which, it 10 of Directive 92/85, which prohibits dis­ appears, were given in the successive medical missal of workers in the period from the certificates, namely 'symptoms of preg­ beginning of their pregnancy to the end of nancy', 'bleeding in pregnancy' and 'preg­ their maternity leave. Despite the fact that nant backache', if they were the only ones, the period within which the Member States seem, especially in the case of the first and

20. The second observation relates to the need to define, once and for all, the respec­ tive fields of application of Directives 76/207 I imagine that the purpose of that examina­ and 92/85, in the light of their provisions and tion was for the company to obtain an inde­ 6 their purposes. The respondent states that pendent opinion as to the worker's chances the repercussions of the judgment to be of recovery, with a view to her returning to given in this case will be very limited since work sooner or later, dismissal being the Directive 92/85 requires the Member States appropriate course if the result of the exami­ to prohibit, with effect from no later than 19 nation suggested that she would not return October 1994, dismissal of a worker who is to work in the short or medium term. If that pregnant, has recently given birth or is were not the case, the dismissal would breastfeeding. In its opinion, Mrs Brown was appear to be a disciplinary dismissal on merely unlucky since, when she was dis­ grounds of illness rather than dismissal justi­ missed, that directive had not been adopted. fied by a situation in which the employer had to bear an excessive burden.

Community action considered necessary, at risk groups must be protected against the the relevant time, in order to achieve the dangers which specifically affect them. principle of equal treatment for men and women in respect of access to employment, vocational training and promotion and in 7 respect of other working conditions. The only exceptions allowed to the principle of equal treatment are to be found in Article 2(2), (3) and (4), specifically relating to occu­ pational activities for which, by reason of their nature, the sex of the worker consti­ tutes a determining factor; provisions relat­ The purpose of Directive 92/85 is to apply ing to protection of women, particularly in measures to encourage improvements to relation to pregnancy and maternity; and health and safety at work for workers who measures to promote equal opportunity for are pregnant, have recently given birth or are men and women, in particular by removing breastfeeding. It is thus clearly concerned any existing inequalities which affect wom­ with protection, providing for different en's opportunities in the areas covered by treatment for women in any of those situa­ the directive. In all cases, the measures tions. The legislature itself recognises, in the involved, as Community law stands at ninth recital in the preamble, that such pro­ present, are a matter for the Member States. tection should not treat women on the labour market unfavourably or work to the detriment of directives concerning equal treatment for men and women.

23. It is true that, once the prohibition of dismissal laid down in Article 10 of Directive 92/85 is incorporated in the domestic law of the Member States, it will become unneces­ sary to apply Article 5 of Directive 76/207, 24. My third observation relates to the case- which lays down the principle of equal treat­ law of this Court interpreting the principle ment for men and women with regard to of equal treatment laid down by Directive working conditions, including the conditions 76/207, where the employment rights of governing dismissal, to cases in which a workers who are pregnant or have recently woman has been dismissed whilst pregnant. given birth are involved. It might not at first sight seem extraordinary that the only four judgments on this subject delivered before the expiry date of the period for submitting written observations in this case, namely the 1 , 11 judgments in Dekker, 0 Hertz 1 , 13 Habermann-Beltermann, 2 and Webb However, the prohibition of dismissal in enabled the parties to the main proceedings, Article 10 of Directive 92/85 does not the United Kingdom Government and the resolve the problem of a woman who, having Commission to defend such conflicting posi­ returned to work on an entirely normal basis tions. What is surprising, and indeed worry­ after her maternity leave, is then dismissed ing, is that all rely on the same paragraphs in for having been intermittently unfit for work support of their views. during the previous year for the number of weeks laid down by national legislation; in such circumstances, is the woman dismissed on the same terms as a man who has been ill for the same number of weeks, when for the female worker account is taken of the period for which she was confined to bed on doc­ tor's orders because, for example, her preg­ nancy displayed a risk of miscarriage? I believe therefore that, as well as answering the preliminary questions from the House of

'The fact that women bear children and men do not has been the major impediment to women becoming fully integrated into the 14 public world of the workplace'. B. The case-law of the Court of Justice on the application of employment rights gov- erned by Directive 76/207 to workers who are pregnant or who have recently given birth 15 16 26. They are the Dekker and Hertz judgments. In the first, the Court gave a pre­ liminary ruling on a question from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), dealing with a case in which Mrs Dekker, a candidate for a post of instructor in a training centre for young (1) The Dekker and Hertz judgments, in adults, who had informed the selection com­ which the Court held that it was discrimina­ mittee that she was three-months pregnant tory to refuse to engage a pregnant woman and who had been recommended by the but not to dismiss her because of incapacity committee as the most suitable candidate for for work commencing after maternity leave, the duties involved, objected to the employ­ even though the illness was caused by the er's refusal to engage her on the ground that confinement she was already pregnant when she submit­ ted her application. That refusal came after the employer established that its insurer would not reimburse the daily benefit that it would have to pay the worker during her absence on account of pregnancy and con­ finement. The applicable national law 25. On 8 November 1990, this Court deliv­ allowed the insurer to refuse wholly or in ered two judgments which have had a con­ part to refund daily benefits to the employer siderable impact in the area of Community where the employee's incapacity for work social law concerned with application of the had arisen within the six months following principle of equal treatment for men and recruitment, provided that, at that time, the women in matters of employment. They worker's state of health was such that the were the first in which the interpretation of Directive 76/207 was in issue and, more spe­ cifically, the right of access to employment 14 — Lucinda M. Finley, Transcending Equality Theory: A Way or the right to maintain a post in relation to out of the Maternity and the Workplace Debate', Columbia Law Review, Vol. 86: 1118, p. 1119. situations as exclusive to women as preg­ 15 — Cited in footnote 10 above. nancy and maternity. Both illustrate well the 16 — Cited in footnote 3 above.

The national court's question, so far as rel­ evant to this case, was whether the employ­ er's refusal to engage the worker in those cir­ 28. Advocate General Darmon, who deliv­ cumstances was contrary to the principle of ered an Opinion covering both cases, carried equal treatment laid down in Directive out a general and invaluable review of the 76/207. question of motherhood and the place which it should occupy, in the light of the principle of equal treatment for men and women, in the economic and social life of European 17 societies, which is still up to date today. After considering whether there was any event more closely connected to the specific nature of womanhood, and whether it was 27. In the second case, the preliminary rul­ conceivable to treat female workers on an ing was sought by the Højesteret (Supreme equal footing with their male counterparts Court), Denmark, to enable it to give judg­ without taking account of motherhood, he ment in the proceedings before it, brought took the view, in the Dekker case, that the by Mrs Hertz against her former employer, refusal to employ the candidate on account Aldi-Marked K/S. Mrs Hertz had been of forthcoming motherhood, thereby taking recruited in July 1982 as a part-time cashier into consideration an event which affected and saleswoman. In June 1983, after a preg­ only female workers, constituted direct dis­ nancy marked by complications, for most of crimination on grounds of sex. which, with the consent of her employer, she was on sick leave, she gave birth to a son. Towards the end of 1983, at the end of her maternity leave, Mrs Hertz returned to work and did not take any more sick leave until June 1984. In the course of the next year she was on sick leave for 100 working days, for which reason she was dismissed: the com­ 29. The Hertz case, he said, involved in a pany claimed that it was normal practice to perhaps more pressing way the difficult task dismiss workers who were ill frequently. It was common ground between the parties that the plaintiff's absences between June 1984 and June 1985 were a consequence of 17 — Opinion of Advocate General Darmon in the Hertz and Dekker cases, cited in footnotes 3 and 10 above, [1990] her confinement in 1983. ECR I-3956, in particular point 21 et seq., at I-3960.

In the next point, when he considers what criteria the Court could adopt in order to decide in which cases a medical condition must fall within the protection demanded by maternity and what the duration of such protection should be, the underlying idea continues to be that the principle of equal treatment applies once the woman has come to the end of her maternity leave. 30. I must make it clear, however, that that bare statement is the consequence of reason­ ing which incorporates throughout the idea that the worker's absences were justified by illness originating from pregnancy or con­ finement, which occur after the expiry of the maternity leave. In fact, in point 43, he says 'I have to confess that I was tempted to pro­ pose a solution whereby medical conditions And, in point 48, the solution he suggests is which were directly, definitely and prepon­ to draw a distinction between the normal derantly due to pregnancy or confinement risks of pregnancy and confinement, which would enjoy ... "immunity", in the sense that he defines as 'the common attendant compli­ the principle of equality of treatment would cations sometimes leading to the grant of restrain the employer from dismissing his additional maternity leave' — risks which, in employee for a reasonable period after the his opinion, should qualify for Community ' 19 event in question. protection inasmuch as they are specific to motherhood — and medical conditions which are not associated with the ordinary 18 — Point 40. risks of pregnancy and should therefore be 19 — Emphasis added in all cases. treated on the same footing as 'ordinary'

sickness, adding that '... in the absence of nant woman would surfer for the duration of national legal provisions conferring special her maternity leave. protection on women, the employer must be able to dismiss his employee at the end of maternity leave ... Thus, once a female worker has exhausted her entitlement to the various types of maternity leave, peńods of absence for reasons of sickness, even if those 33. The grounds and operative part of the reasons can be traced back to pregnancy or Hertz judgment, however, deserve special confinement, cannot be attributed to the nor­ attention. It should be remembered that the mal risks of maternity and must accordingly positions of the parties, as set out in para­ be viewed in the same light as the absences of graphs 8 and 9 of the judgment, were that any other worker, unless the national legisla­ some claimed that the dismissal of a woman ture provides special protection pursuant to on account of pregnancy, confinement or Article 2(3) of the Directive'. repeated periods of absence due to an illness attributable to pregnancy or confinement is, irrespective of the time when the illness occurs, contrary to the principle of equal treatment, since a male worker is not subject to such disorders and hence cannot be dis­ 31. Both judgments were delivered by the missed on that ground. The others main­ full Court, which adopted the solution pro­ tained that an employer cannot be prohibited posed by the Advocate General. The hear­ from dismissing a female worker on account ings were held on 3 October 1989 and the of her frequent periods of sick leave solely Opinion was delivered on 14 November of because her illness is attributable to preg­ the same year. The fact that the judgments nancy or confinement. Such a prohibition, came a year later is indicative, in my opinion, which would affect the employer for many of the difficulties involved in those cases, in years after the confinement, would be liable particular Hertz, as the Court itself acknowl­ to entail not only administrative difficulties edges in paragraph 7 of its judgment, which and unfair consequences for employers but may account for the sparse nature of the rea­ also negative repercussions on the employ­ soning of both judgments. ment of women.

of a female worker on account of pregnancy Such a pathological condition is therefore constitutes direct discrimination on grounds covered by the general rules applicable in the of sex, as is a refusal to appoint a pregnant event of illness. woman ...'; in paragraph 14, the Court states that 'the dismissal of a female worker on account of repeated periods of sick leave which are not attributable to pregnancy or confinement does not constitute direct dis­ crimination on grounds of sex, inasmuch as such periods of sick leave lead to the dis­ Male and female workers are equally missal of a male worker in the same circum­ exposed to illness. Although certain disor­ stances' and, in paragraph 15, that '... direc­ ders are, it is true, specific to one or other tive [76/207] does not envisage the case of an sex, the only question is whether a woman is illness attributable to pregnancy or confine­ dismissed on account of absence due to ill­ ment. It does, however, admit of national ness in the same circumstances as a man; if provisions guaranteeing women's specific that is the case, then there is no direct dis­ rights on account of pregnancy and mater­ crimination on grounds of sex.' nity, such as maternity leave. During the maternity leave accorded to her pursuant to national law, a woman is accordingly pro­ tected against dismissal due to absence. It is for every Member State to fix periods of maternity leave in such a way as to enable female workers to absent themselves during the period in which the disorders inherent in 36. However, the difficulty which arises in pregnancy and confinement occur.' interpreting the scope of that judgment lies in the fact that the clarification concerning the time at which the illness emerges does not appear in the operative part, in which an answer is given that corresponds precisely to the question, as submitted — and the Court adopts the exact wording thereof — in the following terms: 'Without prejudice to the provisions of national law adopted pursuant 35. It is paragraphs 16 and 17 which, in my to Article 2(3) of Council Directive opinion, indicate the direction to be taken in 76/207/EEC ..., Article 5(1) of that directive, interpreting that judgment. In them, the in conjunction with Article 2(1) thereof, does Court expressly states that not preclude dismissals which are the result of absences due to an illness attributable to pregnancy or confinement.'

16 and 17, the Court is very mindful of the referring to absences occurring after mater circumstances in which the dispute before nity leave. the national court arose, whereas, in the operative part, the answer strictly matches the preliminary question, as phrased by the 21 national court, is what has given rise to the divergent interpretations underlying the views of the parties in these proceedings. 38. That is also the interpretation of the Hertz judgment adopted by Advocate Gen eral Tesauro in his Opinion in the Webb

Review, 1992, pp. 160-169, particularly p. 164; More, G.: 'Reflections on pregnancy discrimination under European Community Law' in The Journal of Social Welfare and Family Law, 1992, pp. 48-56,. particularly pp. 53 and 54; Böiger, M.: 'Discrimination on Grounds of Pregnancy as That is certainly the construction adopted by Sex Discrimination' in Gazette of the Incorporated Law academic authors commenting on that judg Society of Ireland, p. 383; Rodríguez-Pinero, M.: 'Discrimi- nación por razón de sexo y embarazo de la trabajadora' in ment: all the commentaries I have read stress, Relaciones Laborales, volume I, 1991, p. 3 et seq., particu- larly p. 8; Flynn, L.: 'Pregnancy and Dismissal:

21 — The question is worded as follows: Do the provisions of 23 — The Opinion preceding the Webb judgment, cited in foot- Article 5(1), in conjunction with Article 2(1), of ... Directive note 9 above, [1994] ECR I-3569 et seq. 76/207/EEC ... encompass dismissal as a consequence of 24 — Advocate General Tesauro expresses the same view in his absence due to illness which is attributable to pregnancy or Opinion preceding the Habermann-Beltermann judgment, confinement? cited in footnote 12 above, [1994] ECR I-1659 et seq.

I - 4206

BROWN v RENTOKIL

(2) The Habermann-Beltermann judgment, in which the Court considered it discrimina­ 39. The contradiction between the Dekker tory for a contract of employment to be and Hertz judgments, emphasised by some 25 declared void or avoided by virtue of the authors, lies in the fact that, in the former, legal prohibition of night work for pregnant the Court described as direct discrimination women a refusal to make an appointment owing to pregnancy, since that can apply only to women, whereas, in the latter, it stated that, for the purposes of dismissal, if an illness manifests itself after maternity leave, there is no reason to distinguish an illness attribut­ able to pregnancy or confinement from any other illness — when it is clear that only women can suffer an illness which is attrib­ 40. In its judgment of 5 May 1994 in utable to pregnancy or confinement — and 2 Habermann-Beltermann, 6 the Court that contradiction can be resolved in my answered preliminary questions from the opinion only if it is concluded that the rea­ Arbeitsgericht (Labour Court) Regensburg son for that distinction lies in the fact that, concerning an employment contract of inde­ once a woman has given birth and returned terminate duration entered into by an employer and a pregnant employee. When they signed the contract, which required 25 — Jacqmain, J., op. cit., p. 50; More, G., op. cit., p. 55; Shaw, J., op. cit., p. 320; Traversa, E., op. cit., p. 436; McGlynn, C. M. S., op. cit., p. 54-55; Boch, C , op. cit., p. 559; Kifpatrick C , op. CIL, p. 85; Szyszczak, E., op. cit., p. 54, and Bur- rows, N . & Mair, J., op. cit., p. 155. 26 — Cited in footnote 12 above.

The Court observed that, in the case of a contract of indeterminate duration, the pro­ hibition of night work by pregnant women 41. On 14 July 1994 the Court gave judg­ takes effect only for a limited period in rela­ 27 ment in Webb, in response to a request tion to the total length of the contract, and submitted by the House of Lords for a pre­ reached the conclusion that, in those circum­ liminary ruling on the interpretation of stances, it would be contrary to the objective Directive 76/207 to resolve a dispute before of protection pursued by Article 2(3) of it between an employer and a female worker, Directive 76/207 and would deprive that recruited for an indeterminate period, who provision of its effectiveness to allow a con­ had been dismissed when the employer dis­ tract to be declared void or be avoided covered she was pregnant on the ground that because the pregnant worker was tempo­ he had engaged her for the specific purpose rarily prevented from performing the night — initially — of replacing another employee work for which she was taken on. The spe­ during the latter's maternity leave. In that cific answer which it gave to the national judgment the Court stated that it was not court was that the provisions of Directive appropriate to consider, as requested by the 76/207 preclude an employment contract for national court, whether the situation of a an indefinite period for the performance of woman who is incapable of performing the night-time work concluded between an task for which she was recruited, owing to a employer and a pregnant employee, both of pregnancy of which she became aware very whom were unaware of the pregnancy, from soon after signing the employment contract, being held to be void on account of the can be compared with that of a man who statutory prohibition on night-time work suffers the same incapacity for medical or which applies, by virtue of national law, dur­ ing pregnancy and breast-feeding, or from being avoided by the employer on account of a mistake on his part as to the essential 27 — Cited in footnote 9 above.

The conclusion reached by the Court in paragraph 27 was that, in circumstances such as those of Mrs Webb, termination of a con­ tract for an indefinite period on account of the woman's pregnancy cannot be justified by the fact that she is prevented, on a purely Mrs Larsson had been employed by Føtex temporary basis, from performing the work Supermarked A/S in March 1990. In August for which she has been engaged. the following year she informed her employer that she was pregnant. During her pregnancy she took sick leave twice. The first absence was for 18 days. The second was on account of a pelvic prolapse attribut­ able to the pregnancy, and lasted about four- (4) The Larsson judgment, in which the and-a-half months. The birth took place on 2 Court appears to have taken the view that it April 1992. Her maternity leave, of 24 is not discriminatory to take account, for the weeks, ended on 18 September 1992. She purposes of dismissal, of a woman's incapac­ then took annual leave until 16 October. ity for work, attributable to pregnancy During her maternity leave and holidays, before commencement of maternity leave Mrs Larsson continued to receive treatment for the pelvic prolapse. She remained on sick leave at the end of her holidays and was not declared fit for work until 4 January 1993. On 10 November 1992 — less than a month after the end of her annual holidays — her employer informed her by letter that she was 42. Against that background, on 29 May to be dismissed with effect from the end of 1997 28 the Court gave judgment in the December. The reason for dismissal was 'the

Article 5(1), in conjunction with Article 2(1), of Council Directive 76/207/EEC of 9 Feb­ 43. The national court asked whether the ruary 1976 on the implementation of the abovementioned provisions of Directive principle of equal treatment for men and 76/207 covered dismissals on account of women as regards access to employment, absence following the end of maternity leave vocational training and promotion, and if the absence was attributable to an illness working conditions, does not preclude a which arose during pregnancy and after woman from being dismissed as a result of maternity leave, it being assumed that the periods of absence subsequent to her mater­ dismissal took place after the end of the nity leave, where those periods of absence maternity leave. It should be noted that the are due to an illness which arose during national court's question concerned dismiss­ pregnancy and has continued both during als for absences following the end of mater- and after the maternity leave, unless, when nity leave. 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.

46. Later on in the judgment, details are given of the position of the plaintiff in the main proceedings, the Danish Government and the Commission, to the effect that it was contrary to Community law for an 48. The Court inferred from those state­ employer, in calculating the period justifying ments that '[t]he principle of equal treatment dismissal under national law, to be able to enshrined in the Directive does not, there­ take account both of absences occurring fore, preclude account being taken of a between the beginning of the pregnancy and woman's absence from work between the the beginning of maternity leave and also the beginning of her pregnancy and the begin­ duration of the maternity leave. Indeed, it ning of her maternity leave when calculating was apparent from the documents in the the period providing grounds for her dis­ main proceedings that, if those periods and missal under national law' and stated in reply the four weeks which she took as leave were to the national court that, without prejudice discounted, Mrs Larsson had been unfit for to the provisions of national law adopted work for less than four weeks when she was pursuant to Article 2(3) of the Directive, dismissed. Article 5(1), in conjunction with Article 2(1), of that Directive does not preclude dismiss­ als which are the result of absences due to an illness attributable to pregnancy or confine­ ment, even where that illness arose during pregnancy and continued during and after 33 maternity leave.

47. As regards maternity leave taken under national law, the Court considered that a woman is protected against dismissal due to absence and to allow absence during such a period to be taken into account as grounds for a subsequent dismissal would be contrary to the objective of permitting national mea­ 49. I confess that I find it rather difficult to sures concerning the protection of women, reconcile those statements with the line particularly as regards pregnancy and mater­ taken in the case-law developed by the nity, pursued by Article 2(3) of the Direc­ Court of Justice up to the time of that judg­ 32 ment, as set out in the foregoing paragraphs. tive. Outside the period of maternity leave The Court appears not only to maintain in

Finally, the operative part of the judgment does not give a complete answer to the ques­ tion from the national court, which was con­ I note, once again with a degree of preoccu­ cerned with dismissals arising as a result of pation, that in paragraph 20, where it states absence following the end of maternity leave that the directive does not preclude dismissal if the absence is attributable to an illness on the ground of periods of absence due to which arose during pregnancy and continued an illness attributable to pregnancy or con­ during and after maternity leave, it being finement, even where such illness first assumed that the dismissal took place after appeared during pregnancy and continued the end of the maternity leave, whereas the during and after the period of maternity Court answered that the provisions of the leave, the Court does not indicate at what directive do not preclude dismissals which time the absences occurred. are the result of absences due to an illness attributable to pregnancy or confinement, even where the illness arose during preg­ nancy and continued during and after mater­ nity leave. Thus, the answer does not men­ tion either the time at which the absences Furthermore, where in paragraph 23 it states occurred or the time at which the dismissal that, outside the period of maternity leave, in occurred. the absence of national Community provi­ sions, a female worker does not enjoy under Article 76/207 any protection against dis­ missal due to absences attributable to an ill­ ness arising during pregnancy, the Court likewise fails to make clear at what time the absences occurred. 50. I consider that, in view of its shortcom­ ings, the Larsson judgment does not provide a sufficient basis for the view that the Court of Justice wished to make a U-turn in its case-law. I believe, therefore, that there is Similarly, in paragraph 24, when it concludes very good reason, for the sake of legal cer­ that the principle of equal treatment tainty, for the Court to give a clear ruling on enshrined in the directive does not preclude the principle of equal treatment for men and account being taken, for calculation of the women in relation to dismissals of female period justifying dismissal, of absences workers occurring during pregnancy or after occurring between commencement of the maternity leave, where account was taken of pregnancy and commencement of maternity periods of unavailability for work caused by

C. The first question from the House of Lords: dismissal of a pregnant woman through incapacity for work attributable to pregnancy 54. It will be remembered that Article 5 of Directive 76/207 provides that application of the principle of equal treatment with regard to working conditions, including the condi­ tions governing dismissal, means that men and women are to be guaranteed the same conditions without discrimination on 52. By this question, the national court grounds of sex. wishes to ascertain whether it is contrary to the principle of equal treatment laid down by Directive 76/207 to dismiss a worker, while she is pregnant, for absence due to incapacity for work attributable to preg­ nancy and whether the answer to the ques­ tion is affected by the fact that the dismissal Starting from the premiss that equality, as is based on a contractual provision entitling defined by the Constitutional Court of one the employer to dismiss employees, irrespec­ of the Member States, "... is not a reality or an abstract mathematical concept but rather unequal treatment of that which is unequal or equal treatment of that which is similar or 34 — For example, Miguel de Cervantes Saavedra, in Chapter LI 35 of the first part or his work The Adventures of Don Quijote alike' and having regard to the settled case- of la Mancha, has the goatherd refer, when relating the story of Leandra, to 'frivolity and failings natural to law of the Court of Justice to the effect that woman-kind, who are generally ill-balanced and unsteady'. 'discrimination can arise only through the He then takes an easier and, according to him, more proper course, which is 'to curse the fickleness of women, their inconstancy, their double-dealing, their unkept promises, their broken faith, and last of all, the lack of judgment they show in their choice of objects for their desires and affec- tions' (Penguin, London 1950, translation by J. M. Cohen, 35 — Judgment of the Spanish Constitutional Court 29/1987 of 6 pp. 449 and 450). March, paragraph 5(b) (BOE of 24 March 1987).

55. By contrast with the situation of Mrs Hertz, whose unfitness for work, which was of obstetric origin, commenced some time after the end of her maternity leave, the com­ 57. This Court emphatically stated, in the plications attendant upon Mrs Brown's preg­ Hertz judgment cited so extensively above, nancy, which prevented her from working that 'the dismissal of a female worker on for much of that period, became apparent at account of repeated periods of sick leave a very early stage. It is clear from the docu­ which are not attributed to pregnancy or con- ments before the Court that she was unfit finement does not constitute direct discrimi­ for work for the period of 26 weeks which nation on grounds of sex, inasmuch as such allowed her to be dismissed pursuant to the periods of sick leave would lead to the dis­ condition included by Rentokil in employ­ missal of a male worker in the same circum­ ment contracts and that she did not give 37 stances'. birth until six weeks later. In view of the fact that the average term of human gestation is 38 weeks, I calculate that she was able to work for only the first five or six.

58. Can it be said, however, that the dis­ missal of a pregnant woman on account of repeated periods of sick leave attributable to pregnancy occurs under the same conditions 56. I wonder whether it is still necessary, at as the dismissal of a man who has been on this stage, to repeat the self-evident fact that sick leave for the same period? In my opin­ pregnancy is a situation which affects only ion the answer is no.

61. These factors appear to have been taken into account by the domestic law applicable in most Member States at the time of the material events in this case, which was fairly similar — only the legislation in the United Kingdom and Ireland differed radically.

I cannot share the view that, in situations of that kind, where the woman is not suffering from any illness but is simply pregnant, it can be said that, in the event of dismissal for Thus, in Germany there was specific protec­ repeated absences, she is dismissed under the tion for women from the start of pregnancy same conditions as a man who has been until after confinement, whereby in that absent through illness for the same period of period dismissal was subject to administra­ time. The same reasoning will apply where tive authorisation; in Denmark, the Ministry the incapacity for work derives from the fact of Employment considered it discriminatory that pregnancy has aggravated an existing ill­ to take account, for the purposes of dis­ ness or brought about conditions which may missal, of absences due to incapacity for be classified as real illness. work attributable to pregnancy, before a woman gave birth; in France, the employer could not dismiss a woman during preg­ 38 — Cited in footnote 9 above, paragraph 25. nancy, during maternity leave or during the 39 — Women whose pregnancy causes unfitness for work of such four weeks thereafter; in Greece, it was a duration arc, fortunately, few in number: it is calculated that they represent 10% to 15% of cases. prohibited to dismiss a worker during

I cannot agree with that assertion for two reasons. First, because it must be borne in mind that Directive 76/207 establishes the principle of equal treatment for men and women regarding working conditions, including conditions governing dismissal, and that, in seeking a basis of comparison, it is inappropriate to draw parallels or distinc­ As regards the three new Member States, in tions between two pregnant women experi­ Austria specific protection existed for encing more or less easy or problematical women from the start of the pregnancy until pregnancies — the point of reference contin­ after confinement, whereby during that ues to be the male worker. Secondly, because, period dismissal was subject to judicial as I indicated in the foregoing paragraph, for authorisation; in Finland, for a worker to be the purposes of dismissal the situation of a dismissed on account of incapacity for work, pregnant woman whose pregnancy prevents there had to be a substantial and permanent her from working and that of a man who is reduction of her ability to work; finally, in unwell are not comparable, in the light of the Sweden, incapacity for work through illness principle of equal treatment laid down by did not justify dismissal if it was probable that directive.

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BROWN v RENTOKIL

64. In my opinion, quite apart from the fact that it is doubtful whether a woman would be dismissed on account of absences from work attributable to routine medical exami­ nations or minor absences due to morning 41 sickness, the position taken by the United Kingdom was arrived at by interpreting that part of the Opinion out of context. As I have 65. I consider, therefore, that, if one wishes already stated in point 30 above, Mr Darmon to draw a distinction between the normal in fact suggested distinguishing between, on risks of pregnancy and confinement and the one hand, normal risks of pregnancy and medical conditions which do not reflect the confinement, namely the usual complications ordinary risks of pregnancy, it is necessary to accompanying such events, which sometimes take a chronological approach: the former result in the grant of an additional period of will, necessarily, be those which arise while maternity leave, and should qualify for the woman is in one of those situations, that is to say whilst she is pregnant or on mater­ nity leave, whereas the latter will be all those which arise after maternity leave, even 40 — Cited in footnote 17 above. though their cause may be traceable back to 41 — Morning sickness may be violent and extend beyond the first three months, requiring hospitalisation in some cases. the pregnancy or confinement.

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OPINION OF MR RUIZ-JARABO — CASE C-394/96

66. For the reasons given above, I consider missal is based on a contractual provision that the dismissal of a woman whilst she is entitling the employer to dismiss a worker, pregnant, on account of unfitness for work regardless of gender, after a specific period of caused by her pregnancy, by taking into con­ sick leave, has no impact on the foregoing sideration a situation in which only women answer. can find themselves, constitutes direct dis­ crimination contrary to Article 5(1) of Directive 76/207.

70. The fact that the provision is contained 68. The national court also asks whether that in the employment contract is irrelevant for answer is affected by the fact that the dis­ the present purposes. First, Article 5(2)(b) of missal is based on a contractual provision Directive 76/207 requires the Member States entitling the employer to dismiss a worker, to ensure that any provisions contrary to the regardless of gender, after a specific number principle of equal treatment which are of weeks of continued absence. included, inter alia, in individual contracts of employment are, or may be, declared null and void. Secondly, the Court of Justice has held that 'when it interprets and applies national law, every national court must pre­ 69. I believe it can be inferred from the fore­ sume that the State had the intention of ful­ going reasoning that the fact that the dis­ filling entirely the obligations arising from 43 the directive concerned'. Finally, the

42 — Papinianus libro trigensimo primo quaestionum. 'In mukis iuris nostri articulis deterior est condicio feminarum quam masculorum. ' The Digest of Justinian, University of Penn­ 43 — Case C-334/92 Wagner Miret [1993] ECR I-6911, para­ sylvania Press, Vol I, Book One (Human Status), p. 16. graph 20.

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BROWN v RENTOKIL

71. In view of the answer which I propose be given to the national court in response to 73. From the information in the order for the first question, it is unnecessary to answer reference, I infer that what the national court the second. I shall nevertheless examine it, in wishes to ascertain, by asking that question, case the Court does not share my view. is whether Directive 76/207 must be con­ strued as having imposed on Member States the obligation to provide, in domestic law, that female workers must be entitled to a period of absence from work merely because they have given birth, and that no other con­ D . The second question from the House of ditions may be imposed on them in that Lords: dismissal of a pregnant woman during regard. the period in which, had she fulfilled the requirements laid down by national law, she could have absented herself from work on account of pregnancy and confinement

74. The purpose of Directive 76/207 is to apply in the Member States the principle of 72. By its second question, the national equal treatment for men and women regard­ court asks whether it is contrary to the ing access to employment, vocational train­ ing and promotion and working conditions. However, by virtue of Article 2(3) of the 44 — Case C-106/89 Markasing [1990] ECR I-4135, paragraph 8. directive, its provisions are to be without

I-4219

OPINION OF MR RUIZ-JARABO — CASE C-394/96

prejudice to the grant by Member States of maternity leave accorded to her pursuant to specific rights for women as regards preg­ a national law, a woman is accordingly pro­ nancy or maternity. It thus only contem­ tected against dismissal due to absence. It is plates the adoption of measures for the pro­ for every Member State to fix periods of tection of women in such circumstances as maternity leave in such a way as to enable an exception to that principle; it does not female workers to absent themselves during oblige the Member States to legislate to that the period in which the disorders inherent in effect, nor does it specify what the rights in pregnancy and confinement occur'. 46

76/207 'does not envisage the case of an ill­ ness attributable to pregnancy or confine­ ment. It does, however, admit of national provisions guaranteeing women specific 46 — Cited in footnote 3 above, paragraph 15. 47 — The legislation concerned is extraordinarily complex, so rights on account of pregnancy and mater­ much so that the Employment Appeal Tribunal exclaimed, nity, such as maternity leave. During the in Lavery v Plessey Telecommunications Ltd [1982] ICR 373, at 379: These statutory provisions [on maternity rights] are of inordinate complexity exceeding the worst excesses of a taxing statute; we find that especially regret- table bearing in mind that they are regulating the every-day rights of ordinary employers and employees. We feel no 45 — Case 184/83 Hofmann v Banner Ersatskasse [1984] ECR confidence that, even with the assistance of detailed argu- 3047, paragraph 25; Habermann-Beltermann, cited in foot- ments from skilled advocates, we have now correctly note 12 above, paragraph 21, and Webb, cited in footnote 9 understood them: it is difficult to see how an ordinary above, paragraph 20. employer or employee is expected to do so.'

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BROWN v RENTOKIL

80. However, the simple right available to Mrs Brown or to any other female worker who, like her, did not fulfil the necessary conditions to secure suspension of her employment contract, to receive for a maxi­ mum period of 18 weeks a maternity benefit from the State if she stopped work in order to give birth, without the possibility of 78. I wonder whether it must be considered re-engagement, does not constitute, in rela­ that a woman who is close to giving birth is tion to the principle of equality, a specific protected from dismissal on account of employment right intended to protect the absence because, under national legislation, biological condition of a woman or the rela­ her contract is suspended for a specific tionship between mother and child in the period of time, which necessarily implies that period following confinement. she is entitled to return to her previous job, or whether it is sufficient that she can cease working and be entitled to receive a benefit from the State, without any entitlement to 48 — Case C-342/93 Gillespie and Others v Northern Health and Social Services Board and Others [1996] ECR I-475, para­ re-engagement. graph 17.

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OPINION OF MR RUIZ-JARABO — CASE C-394/96

Indeed, the right to cease working for an must be compulsory, being allocated before indefinite time, receiving for a limited period or after confinement, had not been adopted a financial benefit from the State, is not at the material time. reserved to women, nor is it necessary to be pregnant or to have given birth in order to exercise it.

(1) (a) Dismissal of a woman whilst she is pregnant , on account of her incapacity for work as a result of pregnancy , is contrary to Article 5(1) in conjunction

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BROWN v RENTOKIL

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 promo­ tion, and working conditions.

(b) The fact that the dismissal is based on a contractual provision entitling the employer to dismiss an employee, regardless of gender, after a stipulated number of weeks of continued absence does not affect the foregoing answer in any way.

In the event that, on the contrary, the Court of Justice considers that it is not discriminatory to dismiss a pregnant woman on account of incapacity for work attributable to her pregnancy, I suggest the following answer to the second ques­ tion: